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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO:  24259/2020

In the matter between:

ONE SOUTH AFRICA MOVEMENT                                                                First Applicant

MMUSI MAIMANE                                                                                      Second Applicant

and

THE PRESIDENT OF THE REPUBLIC

OF SOUTH AFRICA                                                                                   First Respondent

THE GOVERNMENT OF THE REPUBLIC

OF SOUTH AFRICA                                                                              Second Respondent

THE MINISTER FOR COOPERATIVE

GOVERNANCE & TRADITIONAL AFFAIRS                                            Third Respondent

THE MINISTER FOR BASIC EDUCATION                                             Fourth Respondent

and

SOLIDARITY                                                                                                  Amicus Curiae

JUDGMENT

THE COURT

 

INTRODUCTION

1. The virus that has become commonly known as Covid-19, first detected in Wuhan, China in late 2019, has in the past six months, become arguably the most formidable challenge that humanity has had to face in the last 100 years.  While in excess of 8  million people have been infected and more than 400 000 lives lost directly on account of the virus, its impact has reached far beyond that.   It has impacted on the lives and livelihoods of probably billions across the world.  Economists and global leaders already warn of the massive loss in employment and the inevitable contraction of economies with all the attendant consequences that go with it.

2. Thus, while the initial concern and response to the virus was largely and understandably a public health one, with time the impact of the virus on issues such as the economic survival of nations and their citizens, and the simple ability to live a meaningful and decent life, has come sharply into focus.  The ability of governments, in particular those in the developing world, to respond holistically to the needs and well-being of their citizens has come under increased pressure.  This has been exacerbated by the inevitable recognition over time that the virus will be with us for some time and that a cure in the form of a vaccine is still somewhere in the future.

3. Knowledge about the virus has developed incrementally and conclusions and assumptions previously made about it have been in an ongoing state of flux. Strategies to deal with the dangers it poses have varied and been adapted over time as the knowledge base about the virus deepens and as new research unfolds new realities.

4. That being the case, there has been no universal response to how to deal with the virus, save for agreement on measures such as social distancing, the wearing of face masks and the washing of hands.  Beyond that, some countries have opted for what has become known as a hard lockdown while others have opted for a soft lockdown.

5. In some instances, economic and social restrictions have acquired the force of law and attract criminal sanctions while in other instances guidelines are issued and it is left to the wisdom and goodwill of citizens as to how to comply with them.  What this simply demonstrates is that in dealing with a virus, whose scope and dimensions are not fully known, intervention measures are not universal.

6. At the same time, and despite the considerable level of uncertainty and anxiety that has accompanied the arrival and spread of the virus, there have also been many unintended and beneficial consequences.  The need for human solidarity has become more willingly embraced and the idea of a shared humanity has hopefully progressed to more than a slogan as people recognise their common vulnerability in these times.

THE RELIEF

7. It is against this background that the applicants in this matter seek to challenge certain aspects of our government’s response to the Covid-19 crisis.  The challenge is one of many that have faced the Courts recently.  This is not surprising, given that the Covid-19 crisis has required measures to be taken that have inevitably stretched the limits of our Constitutional framework to its fullest.

8. In this matter, what the applicants seek is a reversion to alert level 4 (from alert level 3) and the setting aside of the regulations made following the movement from level 4 to 3.  In addition, they want to prevent government from re-opening public schools until certain conditions are met.  Allied to the latter relief, the applicants ask this Court to make an order in the form of a structural interdict.

9. The relief is framed as follows in the Notice of Motion: -

“1. That the matter may be heard on the basis of urgency in terms of Rule 6(12)(a);

2. Declaring the decision(s) and/or conduct of the respondents in:

2.1. shifting the country from alert level 4 to level 3;

2.2. promulgating the concomitant level 3 regulations; and/or

2.3. announcing and implementing the re-opening of the schools from 1 and/or 8 June 2020, inconsistent with the Constitution, unlawful and invalid, to be unlawful, irrational, unconstitutional and invalid.

3. Setting aside the impugned decision(s) and/or conduct.

4. Directing that the declaration of invalidity is suspended for a period of 60 days, during which the respondents must provide, under the direct supervision of this Honourable Court alternatively of a mutually agreed independent supervisory body, proof of the existence of a comprehensive readiness and implementation plan, which must precede the simultaneous reopening of any grade or category of learners and must include:

4.1. a detailed plan in respect of the provision, distribution and storage of protective equipment;

4.2. a detailed plan for the restoration of infrastructure in relation to schools vandalised during the lockdown;

4.3. a clear plan in relation to the safe delivery of food as part of the national school program;

4.4. social distancing rules in respect of overcrowded and other schools;

4.5. special assistance programmes for children with disabilities;

4.6. risk mitigation strategies for teachers, parents and school staff who will come into contact with learners;

4.7. a plan to prevent the direct and indirect discrimination against economically and historically disadvantaged learners; and

4.8. a detailed plan to consult relevant stakeholders in the education sector.

5. Directing that, pending the final approval of the readiness and implementation plan, the level 4 regulations, which were effective on 31 May 2020, will continue to operate.

6. Directing the respondents to close and/or not to open any schools until all schools have been declared ready to open.

7. Costs only in the event of opposition.”

 

THE PARTIES

10. The first applicant is a registered non-profit organisation, One South Africa Movement (OSAM).  It has among its objectives “a society where political leaders are accountable”.  It states that it brings the application in its own right, as well as in the public interest under section 38 of the Constitution.  The second applicant is Mmusi Maimane (Mr Maimane).  He is a former Member of Parliament and is currently employed as the convenor of OSAM.  Mr Maimane brings the application in his personal capacity, as a citizen and parent of school-going children, and in his representative capacity as convenor of OSAM.

11. The first respondent is the President of the Republic of South Africa in his official capacities as Head of State and of the National Executive.  The second respondent is the Government of the Republic of South Africa.  The third and fourth respondents are Ministers in the Cabinet, being the Minister of Co-operative Governance and Traditional Affairs (COGTA), and the Minister of Basic Education, respectively.

THE AMICUS CURIAE

12. Solidarity was admitted as amicus curiae at the hearing of the matter.  It is a registered trade union.  Its members include approximately 1 244 teachers and educators employed in private and public schools countrywide.  Solidarity’s interest in the application is based on its mandate to advance the interests of those of its members who, as teachers and educators, are directly affected by that part of the relief sought by the applicants.

13. Solidarity sought only to advance legal, and not factual, submissions to the Court.  Its admission as amicus was opposed by the applicants on a number of grounds.  The respondents did not oppose Solidarity’s application.  Having heard submissions from the applicants and Solidarity before the commencement of the hearing of the main application, we ruled that Solidarity should be admitted as amicus curiae.  Our reasons for doing so appear below.

14. The main thrust of the applicants’ opposition to Solidarity’s application was that it did not make any new submissions on the legal issues, but merely repeated submissions that were already made by the respondents.  They contended that Solidarity’s admission as amicus would not add any value to the proceedings.  In addition, Solidarity was not a true amicus.  According to the applicants, the submissions Solidarity wished to advance demonstrated that it was partisan in its position in siding with the respondents, and its application ought not to be countenanced.

15. It is so that Solidarity’s submissions covered some of the same grounds as those advanced by the respondents.  For example, Solidarity sought to address the court on non-joinder, which is an issue squarely raised by the fourth respondent.  However, on this issue, the submissions sought to be made by Solidarity went further than those made by the fourth respondent.  Solidarity submitted that the Heads of Provincial Departments of Education (and not only the MEC’s for education) should also have been joined in the application.  Solidarity also sought to make submissions on locus standi, and on the executive nature of the decisions impugned by the applicants.  These were not points directly addressed by the respondents.  As such, the Court took the view that Solidarity’s submissions would potentially be of assistance if it was admitted as an amicus.

16. The role of an amicus is to assist the Court on the basis either of its expertise or because of its interest in the matter.  It does not necessarily have to adopt a neutral position and, indeed, seldom does so.  As the Constitutional Court has recognised:

“It chooses the side it wishes to join, unless requested by the court to urge a particular position.”^[1]

17. The fact that Solidarity aligned itself with the position of the respondents in contending that the applicants relief ought not to be granted is not a reason to non-suit their application to be admitted as amicus.  It is a permissible position for an amicus to adopt.  In our view, this complaint by the applicants was not a reason to refuse Solidarity’s application.

SOME PRELIMINARY ISSUES

Urgency

18. The applicants say that not only is the urgency of the matter self-evident, but that the relief sought has far reaching implications for the rights of learners and others in that it seeks to prevent the real risk of ongoing harm.  To that extent it argues that the Court should find that the matter is urgent.

19. The respondents place in issue the question of urgency. The fourth respondent in particular says that the decision to re-open schools was announced on or about 30 April 2020.  The applicants first unsuccessfully sought to seek direct access to the Constitutional Court.  Following this they issued these proceedings in this Court.  The fourth respondent says that on account of the applicants’ conduct, the urgency that they contend for is self-created.  She also takes issue with the narrow time frames imposed on the respondents for filing their answering affidavits and asks that the matter be struck from the roll on the basis of non-urgency.

20. The question of urgency, while not conceded, was hardly pursued in argument and our view is that due to the nature of the issues involved, in particular the rights of learners, their educational and other interests, this should warrant the urgent attention of this Court and we are accordingly satisfied that the matter is urgent.

Non-Joinder

21. All of the respondents raise what they describe as the fatal non-joinder of all the Members of the Executive Council (MECs) at provincial level responsible for education as well as their respective Heads of Department (HODs).  In addition, the amicus says that the failure to join school governing bodies and the Minister of Health is also fatal to the application.  The respondents and the amicus argue that the application should either be postponed to effect joinder or be dismissed on the basis of non-joinder.

22. The non-joinder rule is described in Erasmus Superior Court Practice[2] as requiring that “any person is a necessary party and should be joined if such person has a direct and substantial interest in any order the court might make or if such order cannot be sustained or carried into effect without prejudicing that party.”

23. The respondents rely on the following legislative framework to sustain their submissions on non-joinder:

(a) In terms of s125 (2)(b) of the Constitution, education is a functional area of national and legislative competence.

(b) In terms of the various provisions of the Schools Act,[3] MECs and HODs in the provinces are responsible for the practical and day to day administration of schools and they accordingly have a direct and substantial interest in the relief sought.

(c) Under s3(1)(b) of the Employment of Educators Act,[4] the Provincial Educational Departments are the employers of educators.

(d) Various provisions of the South African Schools Act also locate the responsibility to provide for the establishment of public schools in provinces, the needs of learners with special needs, the management of such schools, and the closure of such schools in emergency situations within the remit of MECS.

24. For these reasons the respondents submit that the MECs and HODs have a direct and substantial interest in the relief claimed and should have been joined.

25. The amicus associates itself with the stance of the respondents but in addition, says that School Governing Bodies who are responsible for the governance of public and private schools should have been joined, as well as the Minister of Health in so far as it relates to the challenge to move from alert level 4 to 3.

26. In response to this challenge, the applicants point out that the decisions which it seeks to have impugned in these proceedings all have their genesis in Section 27(2) of the Disaster Management Act which only authorises Ministers in Cabinet to issue directions of the kind that arise in this application.  To that extent, they say that MECs and HODs do not therefore have a direct and substantial interest in the relief claimed, rendering their joinder unnecessary.

27. The Disaster Management Act (DMA)^[5] does indeed locate and confine the powers to issue and vary directions to members of Cabinet only and the decision of the fourth respondent fell within her competence.  It has not been suggested by any of the parties that the fourth respondent acted outside of her powers in this.  The decision-making process also strongly suggests that while MECs and HODs were consulted on the re-opening, the ultimate decision on re-opening was that of the fourth respondent.

28. While the relief sought may have some implications for MECs and HODs, we would go no further than to say that they certainly have an interest in it but not an interest that could be described as direct and substantial.

29. In so far as School Governing Bodies are concerned, the same view must apply – they lack a direct and substantial interest in the relief claimed. In any event, there are probably thousands of such bodies.  We do not know whether they are represented in some organised structure which could be joined or not.  To have to join all of them would create insurmountable logistical difficulties.  In any event, as we have concluded, they lack a direct and substantial interest in the relief claimed.

30. Finally, the move from Alert Level 4 to Alert level 3 falls within the exclusive competence of the third respondent and even though it is a decision that impacts on virtually all her other Cabinet colleagues, none of them would have an interest that reaches the ceiling of a direct and substantial interest in the relief claimed that would warrant their joinder.

31. Accordingly, the defence of non-joinder falls to be dismissed.

THE FACTUAL AND LEGAL CONTEXT

32. Central to the application is the progression of the Covid-19 epidemic[6] in South Africa and the government’s response to it.  The applicants accuse the government of irrationally, unlawfully and unconstitutionally abandoning measures aimed at effectively combating the Covid-19 epidemic, and replacing them with constitutionally non-compliant measures which are likely to result in the preventable deaths of human beings, especially the poor and vulnerable.  In other words, the applicants charge the government with not doing enough to protect lives in easing lockdown restrictions.

33. The language used by the applicants in their challenge is at times highly charged and emotional.  That the epidemic invites an emotional response from concerned citizens is understandable.  However, it is important to bear in mind that ultimately, the decisions this Court makes must be founded in law.  Whether or not the decisions of the government fall foul of its constitutional duties must be examined very carefully, having full regard to the legislative, policy and factual context within which those decisions have been made.  We should also bear in mind that there has been a progression in the government’s response since mid-March 2020, and that this progression has ultimately culminated in the decisions the applicants now challenge.  In other words, the impugned decisions did not come out of the blue.  For these reasons, it is necessary to examine this context in some detail.  The relevant facts forming part of the context are largely common cause between the parties.

34. The first phase of the government’s response was the declaration of a national disaster on 15 March 2020.  The Head of the National Disaster Management Centre issued a notice under s23(1) of the DMA on this date.  In terms of s3 of the DMA, the third respondent was designated by the President as the Cabinet Member responsible to administer that Act.  In terms of s4, the third respondent is the Minister responsible for chairing the Intergovernmental Committee on Disaster Management.  Acting under s27 of the DMA she declared a national state of disaster.^[7]

35. Section 27(1) of the DMA gives the third respondent the power to declare a national state of disaster if:

“(a) existing legislation and contingency arrangements do not adequately provide for the national executive to deal effectively with the disaster; or

(b) other special circumstances warrant the declaration of a nationals state of disaster.”

36. The declaration of the disaster triggered the third respondent’s powers under s 27(2) to make regulations concerning, among other things, the implementation of all or any of the provisions of a national disaster management plan that are applicable in the circumstances,[8] - the regulation of the movement of persons and goods,^[9] and other steps that may be necessary to prevent an escalation of the disaster, or to alleviate, contain and minimise the effects of the disaster.^[10]  At this stage, the country had entered what is called the “local transmission” stage of the epidemic.  This meant that people were being infected in South Africa, rather than from overseas.  There were 61 confirmed cases of the virus.

37. The first set of regulations (the 18 March C-19 regulations) was promulgated on 18 March 2020.^[11]  They did not impose a full-scale lockdown.  Instead, among other things, they prohibited gatherings and the assembly of more than 50 people at premises where liquor was sold or consumed.  The 18 March C-19 regulations also closed schools for the period 18 March to 15 April 2020, with the possibility of a further extension beyond the latter date.

38. The third respondent states that the 18 March C-19 regulations reflected steps that she believed were necessary at that stage to prevent an escalation of the epidemic, and to minimise its effect.  However, it became apparent that the epidemic was going to be more severe than anticipated.  The government needed to act swiftly to slow the spread in order to minimise the total number of infections.  The most urgent need was to avoid a rapid and unmanageable peak of Covid-19 cases requiring medical treatment which the health system could not provide.  This has been described as the need to “flatten the curve” of the virus.

39. Professor Salim Safurdeen Abdool Karim (Prof Karim) is an epidemiologist and since March 2020, has been the Chair of the Ministerial Advisory Committee (MAC) on the Covid-19 epidemic in South Africa.  The MAC is a body comprised of 51 people, from a wide range of disciplines, most of whom are academics and staff of the Department of Health.  As chair of the MAC, Prof Karim provides expert technical advice to the Department of Health on measures to control the spread and impact of the virus.

40. Prof Karim provided an expert affidavit in support of the respondents’ opposition to the application.  In it, he explains that “flattening the curve” means reducing the number of infections at peak, and reducing the number of infections at any given time to a level that health care services will be able to cope.  In this regard, he says that:

“Although it is important to minimise the total number of infections over the course of this pandemic, the greatest risk to life currently posed by SARS-CoV-2 stems from the devastating collapse of the healthcare system.”

41. The “strict lockdown” was effected from midnight on 26 March 2020 through an amendment to the 18 March C-19 regulations.^[12]  At that stage there were 402 confirmed cases of infection in the country.  The third respondent explains that Cabinet took the decision to impose a nation-wide lockdown after extensive debate.  It appeared to be the only solution that would quickly and significantly slow the progression of the epidemic sufficiently to achieve two important objectives: to ensure greater preparedness of the health care system to cope; and to put into effect an active contact tracing system.  The objective was to slow the spread and flatten the curve, in line with international consensus at the time.  The third respondent states that government was advised that although a strict lockdown would flatten the curve, it would not prevent the spread of the virus.

42. The initial strict lockdown period was 21 days.  The amendments to the 18 March C 19 regulations, which gave effect to this lockdown, were promulgated on 25 March 2020 (the 25 March amendments).  In brief, they imposed a restriction on the movement of persons by confining every person to his or her place of residence except in narrowly defined circumstances.  They also imposed onerous restrictions on businesses and retail stores, which were permitted to sell only essential goods.

43. The strict lockdown coincided with the implementation of a national screening, testing, tracing, and medical management programme by government.  This aimed to put thousands of field workers into communities to screen residents for Covid-19 symptoms.  By the time the initial strict lockdown period was scheduled to end, government had realised it needed more time to achieve its purpose.  The establishment of additional medical facilities in provinces was not complete.  These had to be in place to deal with the inevitable spike in infections that would accompany the easing of the lockdown.  In addition, there was still a shortage of personal protective equipment (PPE) and ventilators.  The lockdown was extended for a further two weeks.  In addressing the nation to explain the extension of the lockdown, the first respondent said that government intended to use the additional time to:

“(Evaluate how the country) would embark on risk adjusted measures that could enable a phased recovery of the economy, allowing a return to operation of certain sectors under strictly controlled conditions … (and) to ramp up our public health interventions.”

44. The respondents say that the strict lockdown was successful in achieving its objectives.  At the end of the 5-week lockdown period, the “doubling rate” of the infections was about 2 days, but by the end of the lockdown, it was 15 days.  This means the number of infected persons doubled only every 15 days, giving a clear indication of how the lockdown had managed to flatten the curve.  According to the respondents, the strict lockdown disrupted and limited the spread of the virus, thus giving time to government to prepare its healthcare system.

45. The applicants have no quibble with the strict lockdown aspects of the government’s response to the epidemic.  Their complaint is directed at the easing of the lockdown measures, and, more particularly, the easing to alert level 3 and the re-opening of schools.  It is important to explain the context in which the progressive easing of lockdown measures has occurred.

46. In a presentation by Prof Karim on 13 April 2020, he made it clear that the “difficult truth” was that South Africa could not escape the worst of the crisis and that the exponential spread of the virus was unavoidable.  The easing of lockdown would place the population at high risk once again.  However, he pointed out that the lockdown interventions had slowed the spread and gained time to deal with this reality.  Prof Karim recommended that there should not be an abrupt return from lockdown.  Instead, there should be a systematic easing over several days.  In addition, at that stage he advised that lockdown should be eased only when there were less than 44 new cases per day on average.  This position was subsequently revised by Prof Karim, as we shall see later.

47. As the third respondent had indicated when she addressed the nation, government introduced a Risk Based Strategy (RAS) to deal with the epidemic from this point.  The third respondent explained that government had always anticipated that lockdown would be a temporary measure, and that it would either have to be lifted at the end of the extended lockdown period (after 30 April 2020), or it would have to be lifted in a staggered fashion.  The RAS was adopted to guide government on the path to a gradual and phased recovery of economic activity.  As the first respondent explained to the nation in his address on 23 April 2020, while a nation-wide lockdown was probably the most effective means to contain the spread of the virus, it could not be sustained indefinitely.  The economic impact of a sustained lockdown rendered it unsustainable.  People needed to eat and earn a living.  A balance had to be struck between, as the first respondent put it, “lives and livelihoods”.

48. The RAS was developed in collaboration with the economic cluster departments.  It was also informed by the advice from the MAC that the high-point of the virus spread was likely to be in September 2020.  This meant that any approach adopted by government would have to be suitable for a period of 6 to 8 months.

49. Under the RAS, the government identified five alert levels for dealing with the epidemic.  The alert levels are described in the regulations promulgated by the third respondent on 29 April 2020 (the 29 April regulations).^[13]  These regulations are currently still in force, albeit with some amendments to deal with, among others, the move to alert level 3 which is discussed later.

50. The respondents explain the different alert levels as follows:

(a) Level 5 means that drastic measures are required to contain the spread of the virus to save lives.

(b) Level 4 means that some activity can be allowed to resume, subject to extreme precautions required to limit community transmission and outbreak.

(c) Level 3 involves the easing of some restrictions, including on work and social activities to address a high risk of transmission.

(d) Level 2 involves the further easing of restrictions, but the maintenance of physical distancing and restrictions on some leisure and social activities to prevent a resurgence of the virus.

(e) Level 1 means that most normal activity can resume, with precautions and health guidelines followed at all times.

51. The 29 April regulations do not prescribe the factors that guide government’s decision to move from one alert level to another.  However, in a presentation made by the third respondent on 25 April 2020, she explained that the appropriate alert level will be determined by four factors:

(a) The rate at which the proportion of the population tested is increasing (with a higher rate being better than a lower rate).

(b) The rate at which the proportion of positive tests is increasing (with a lower rate being better than a higher rate).

(c) The rate of increase in hospital beds in both private and public sectors per 1000 population (with a higher rate being better than a lower rate).

(d) The rate at which the proportion of hospital beds being utilized for Covid-19 is increasing (with a lower rate being better than a higher rate).

52. In her presentation, the third respondent noted that all four of these measures are dynamic and change over time.  The alert levels comprise the first component of the RAS.  The second component focuses on sectors of the economy.  It considers the alert-readiness status of different sectors of industry based on various criteria.  These are:

(a) The risk of transmission in each industrial sector.

(b) The expected impact on the sector should the lockdown continue.

(c) The value of the sector to the broader economy (including, among others, a sector’s contribution to GDP, employment and multiplier effects).

(d) The promotion of community well-being and the livelihoods of the most vulnerable.

53. Under regulation 3(2) of the 29 April regulations, the third respondent determines which alert levels are to apply, upon the recommendation of the Minister of Health, in consultation with Cabinet.  It empowers the third respondent to declare different alert levels to apply nationally, provincially and locally.

54. Until the decision to move to alert level 3, chapter 3 of the 29 April regulations declared that level 4 would be applicable from 1 May 2020 nationwide.  The regulations set out in that chapter determined what restrictions would be in place in terms of, among other things, the movement of people.  Under regulation 16, people were confined to their places of residence, but were permitted to leave for identified reasons.  These included the need to perform an essential or permitted service, to go to work as permitted, to buy permitted goods, to obtain permitted services, to move children as permitted, and to exercise between the hours of 6h00 to 9h00.

55. The sectors of economic and industrial activities permitted under level 4 are set out in Table 1.^[14]  The Table is very detailed and it is unnecessary to discuss it in any depth.  It is worth noting, however, that level 4 permitted the re-opening of the economy to a substantially greater degree relative to what was permitted under the strict lockdown (level 5).  For example, restaurants could once again, prepare and sell hot, cooked food for home delivery; engineering, construction and related services for public works could be resumed; and manufacturing of all wholesale and retail products permitted to be sold under alert level 4 could resume.  The Minister of Transport was empowered to issue directions for the resumption of different modes of transport to cater for the gradual return to work.^[15]  Significantly, for purposes of the present application, Part Q of Table 1 deals with Education Services.  It provides that these services will be:

“Permitted on dates and schedules set out separately”

56. Chapters 1 and 2 of the 29 April regulations apply for the remainder of the national state of disaster.^[16]  An important feature of chapter 2 is that it empowers Cabinet members to issue directions to deal with various aspects of their area of competence affected by the national state of disaster.  Regulation 4(10) provides that:

“Any Cabinet member may issue and vary directions, as required, within his or her mandate, to address, prevent and combat the spread of Covid-19, and its impact on matters relevant to their portfolio, from time to time, as my be required, including-

… (c) taking any other steps that may be necessary to prevent an escalation of the national state of disaster, or to alleviate, contain and minimise the effects of the national state of disaster; … .”

57. A further feature of chapter 2 is that it prescribes general preventative measures to contain the spread of the virus.  The wearing of cloth masks is compulsory in public places,^[17] on public transport, and in any public premises.^[18]  Employers must provide face masks to employees who may come into direct contact with the public.^[19]  And specific obligations are placed on business, such as supermarkets and retail stores, to adopt and apply social distancing measures in their establishments.^[20]  Similar obligations are placed on employers.^[21]

58. On 18 May 2020, the MAC provided the Minister of Health with an internal memorandum (the MAC memorandum) titled: “The Path Forward in the National Covid-19 Response: Concurrently Saving Lives and Livelihoods”.  The background section of the MAC memorandum noted that:

“The national lockdown (extreme social distancing) has effectively started the process of flattening the curve and temporarily slowing down the spread of SARS-CoV-2. The lockdown has created space for all sectors, particularly the health sector, to prepare for the increasing number of cases expected as the epidemic spreads. It has allowed the country to plan for a 'New Normal’ living with the virus until we have a vaccine which is likely to take 18 -24 months or longer. Notwithstanding the gains to the COVID-19 response, the introduction of some criteria and regulations without clear rationale for their utilisation, notably at level 4 lockdown, has impacted on public confidence with people less committed to following the rules. Furthermore, the lockdown is having negative effects on other aspects of healthcare, which if not addressed soon may cumulatively eclipse benefits of managing COVID-19. In addition, each month of the level 5/4 lockdown leads to a 3% contraction of the economy with resultant hardships to the most vulnerable and fragile communities.”

59. The MAC memorandum addressed the question: “What is a constructive path forward to ensure that the public health gains accomplished in slowing down the spread of the Coronavirus to date are not reversed during the resumption of economic activity that will increase the movement of people and the risk of spreading the virus?”  Points identified for consideration listed in the MAC memorandum included the following:

(a) The lockdown had successfully delayed the peak caseload and had allowed time for health services to prepare for an increasing number of seriously ill patients.

(b) A large majority of symptomatic patients are predicted to be mild with a small proportion being severe.

(c) The level 5/4 lockdown was having negative effects on other aspects of healthcare, which may eclipse the benefits of managing Covid-19.  These included missed childhood vaccinations; limited access to contraception; massive underdiagnoses of TB cases; defaulting treatments for patients with HIV and other non-communicable diseases; delays in scheduled surgeries; a reduction in reproductive health services; and healthcare for pregnant women.

(d) A concern that easing the lockdown might be misinterpreted as meaning that there is a lower risk of infection and a relaxation by the public of preventative interventions at a time when the number of cases is likely to rise steeply.

(e) Under the level 5/4 lockdown, the long-term negative consequences to the economy is increasing rapidly with a 3% contraction every month.  This will take years to rebuild.  Some companies may not re-open and many will fail if activity at levels where they can operate profitably is not restored very soon.  Loss of household income in the formal and informal labour sectors is resulting in increasing poverty and food insecurity.

(f) The MAC noted that: “This situation has in some quarters been presented as a dichotomy between lives and livelihoods.  The argument that we ‘either fight the virus’ or ‘re-open the economy’ is a false tension.  With good planning, implementation and enforcement, both can happen concurrently.”

60. The MAC memorandum recommended, among other things, that:

(a) A generalised lockdown is no longer the most appropriate strategy for South Africa.  It should be eased over a short period from level 4 to reach level 1 by the end of May 2020.  “The easing should be accompanied by the initiation of stage 5 (Hotspot identification and mitigation) in high risk areas.”

(b) A sustainable set of interventions should be adopted by all institutions and citizens.

(c) The future consideration of a generalised lockdown should be based on “whether the number of cases is likely to exceed healthcare capacity.”

(d) A careful and considered review of existing and new lockdown regulations should be undertaken.

(e) With reference to the World Health Organisation’s (WHO) Covid-19 strategy update, the list of “six key criteria” to be satisfied by countries to transition from lockdown to re-opening of normal social activities was aimed at a country whose epidemic was already at its peak.  Some of the criteria do not apply to South Africa.  “It’s wholesale adoption is therefore not recommended, although points that do pertain to the situation in this country have been incorporated in these recommendations.”

(f) A tailored combination of interventions should be introduced and promoted for the next 18-24 months.  This “toolbox” includes hand hygiene, sanitisation of work and living spaces, social distancing, cloth masks, screening, isolation, testing, quarantine and contact tracing.

(g) Caution and self-quarantine is recommended for high risk individuals.

(h) Continued prioritisation of protection of healthcare workers is needed.

(i) Routine health services need to be reinstated urgently.

(j) Workplace protocols should be developed as workplaces prepare to open.

(k) The re-opening of economic sectors should be accompanied by the re opening of educational institutions.  However, such institutions must demonstrate their capacity to implement relevant prevention interventions from the toolbox and consideration must be given to mechanisms to maximise opportunities for social distancing.

(l) Public transport should be opened as much as possible while the sector should be supported to introduce and enforce the use of prevention interventions.

(m) The implementation of “hotspots” to identity outbreaks early was recommended.

(n) Attention should be given to the safe resumption “at an appropriate time” of high-risk activities and businesses.

61. Finally, in summary, the MAC memorandum recommended the:

“phased easing of the lockdown to level 1 with the resumption of economic activity under conditions that provide simultaneous mitigation of risk in the midst of a rising number of cases.”

62. Following this advice from the MAC, the third respondent decided that the whole country would move from level 4 to level 3, but that certain areas would be designated as hotspot areas.  This decision was conveyed to the nation on 24 May 2020.  The third respondent explains that the rationale behind this move was that:

(a) Although the lockdown was effective, it could not be sustained indefinitely.  This was particularly so as the restrictions on economic activity carried serious social and economic consequences, particularly for the poor and vulnerable.

(b) From inception, government understood that the lockdown could only delay the spread of the virus, but could not stop it.  South Africa would have to live with the virus for some time while managing the spread.

(c) This was why the RAS was adopted to manage the gradual easing of lockdown.  It was informed by the level of infections; the rate of transmission; the capacity of healthcare facilities; the extent of the implementation of public health interventions; and the economic and social impact of continued restrictions.

(d) The government based its response on the best available scientific evidence, which indicated that the lockdown had served its purpose and that it was appropriate to ease restrictions.

63. On 28 May 2020, the third respondent published a notice indicating that alert level 3 would apply nationally from 1 June 2020 (the level 3 Notice).^[22]  This decision was taken on the recommendation of the Minister of Health and in consultation with Cabinet.  The level 3 Notice also declared various metros and districts to be “hotspots”.  The 29 April regulations were simultaneously amended on the same date.

64. One of the amendments in the 28 May regulations deals with hotspot areas.  Regulation 3 now provides that the movement of persons may be restricted in and out of a hotspot,^[23] and it empowers the third respondent to determine the additional restrictions that may apply to such an area.^[24]  The Minister of Health, after consultation with the Member of the Executive Council for Health in each province, must identify a hotspot by taking into account the number of active cases per 100 000 population; the rate of increase of active cases; the availability of hospital beds and related resources; and any other factors relevant for purposes of containment of Covid-19.^[25]

65. A further significant amendment introduces chapter 4 into the 29 April regulations.  This chapter comprises a comprehensive set of rules to regulate alert level 3.  It permits people to leave their places of residence for more open-ended purposes than under level 4.  People may travel to and from work, and may exercise between 6h00 and 18h00.  Learners may leave their homes to attend school “once these are opened”.^[26]  The protective measures regarding face masks and social distancing remains, as do the prohibition of persons moving between provinces.  However, this is allowed for work purposes, moving to a new residence, or to care for an immediate family member.^[27]  As under level 4, gatherings remain prohibited, except for funerals, and attendance at religious services, both of which are restricted to 50 people.

66. One of the most significant features of level 3 is that all businesses may operate except for those set out in Table 2.^[28]  Thus, the level 3 model represents a shift from prohibiting business activity unless expressly permitted (under level 5 and 4) to permitting all business activity unless expressly prohibited.  Businesses must, however, comply with health and social distancing measures.^[29]  Employers must implement measures for employees who are over 60, or those with co-morbidities to facilitate their safe return to work.  Where possible, these employees should work from home.^[30]  It should be noted that chapter 3 retains many of the existing restrictions that are included in chapter 3, which are relevant to level 4.

67. It is accepted by all parties that the effect of the opening up of the economy under level 3 has been to release 8 million workers from their residences to return to work.  Many of these will make use of public transport.  This is one of the main struts of the applicants’ challenge to the decision to move from level 4 to level 3.

68. The other main strut of the applicants’ case is directed at the decision by the fourth respondent to reopen schools.

69. The fourth respondent explains that the re-opening of schools has been discussed in various forums over the past few months.  The Department of Basic Education started planning and preparing for the re-opening of schools during this period.  It held extensive consultations to discuss a return to the classroom without compromising the lives of learners, teachers and employees.  The measures put in place by the Department of Basic Education are discussed in more detail later, as is the rationale for the decision.  On 19 May 2020, the fourth respondent announced that as from 1 June 2020 all schools would open for Grades 7 and 12 learners, and that other Grades would follow in due course.  The parties are agreed that approximately 2 million learners will return to school in the first phase, and considerably more when the second phase commences.

70. On 29 May 2020, the fourth respondent published a notice under regulation 4(3) of the 29 April regulations giving directions for the re-opening of schools.^[31]  The scheme formulated under the fourth respondent’s directions is examined in more detail later.  It is useful to note at this stage that the directions envisage a staggered return to school, from June 2020 (for Grades 7 and 12), to July (for a range of other Grades).  It is also relevant to note that despite the date for re-opening having been set for 1 June 2020, that date was pushed back to 8 June 2020.

71. It is against this contextual background that we must examine the applicants’ challenge.

SYNOPSIS OF THE CHALLENGES TO THE IMPUGNED DECISIONS

72. The relief the applicants seek is directed at the respondents’ decisions to:

(a) move from alert level 4 to alert level 3 as from 1 June 2020;

(b) promulgate chapter 4 of the 29 April regulations; and

(c) re-open schools from 1 June (subsequently 8 June).

73. The third respondent made the decisions relating to the first two challenges (the first and second streams), pertaining to the broader issue of the decision to move to alert level 3.  The fourth respondent made the decision relating to the third challenge (the third stream), which is narrower in focus.  What follows is a brief synopsis of these challenges.  Each is dealt with in detail under separate headings later.

74. As regards the first and second streams, the applicants do not mount a separate challenge to chapter 4.  Their case is that if this Court reviews and sets aside the decision to move to alert level 3, chapter 4 must follow the same fate.  For this reason, the first and second streams may be dealt with together, with the primary challenge being to the decision to move to alert level 3.

75. As to this challenge, the applicants’ case is that:

(a) The overarching issue is whether this decision can withstand constitutional scrutiny.

(b) In the first instance, the question is whether the decision violates or threatens to violate, primarily, the right to life, together with other fundamental rights, including the right to dignity, equality, bodily integrity and health, and the fundamental rights of children.  We refer to this as the violation of rights challenge.

(c) If it is found that these fundamental rights were violated, it follows logically that the respondents have failed in their constitutional obligation under s7(2) of the Constitution to:

“respect, protect, promote and fulfil the rights in the Bill of Rights.”

(d) That violation cannot be justified under s36 of the Constitution, and the decision should be reviewed and set aside on this basis alone.

(e) In the second instance, the question is whether the decision violated the rule of law and the principle of legality and rationality.  We refer to this as the legality/rationality challenge.

(f) The legality/rationality challenge turns on s27(3) of the DMA, which sets out the purposes for which regulations and directions may be made.  The third respondent was empowered to do so only to the extent necessary for those purposes.  The decision to move to alert level 3, and the promulgation of chapter 4 was not necessary for those purposes and, as such, these decisions are irrational and unlawful.  They should be reviewed and set aside on this basis too.

76. As to the narrow challenge (the third stream), which is directed at the decision of the fourth respondent to the re-open schools, the applicants’ proceeds along the following lines:

(a) The overarching issue remains the same.

(b) So, too, does the violation of rights challenge, albeit in the context of the potential harm posed to children, and their families, by the return to school.

(c) The decision unfairly discriminates against poorer, and black learners in that they are more likely to be exposed to heightened risks of infection.  The decision violates their right to equality.

(d) While the fourth respondent has taken cogent steps to mitigate these risks, and has devised extensive plans to this end, she has not devised implementation plans, nor are her plans implementable.  This constitutes a failure of the respondents’ constitutional obligations.  Her decision contravenes the constitutional principles of rationality and legality.

(e) The violations of rights are not justifiable.

(f) These constitutional breaches are such that the executive must be held accountable.  To this end, the applicants seek a structural interdict against the respondents.  They ask that it be ordered that alert level 4 measures should be reinstated by the Court until such time as the Court is satisfied that the respondents have complied with their obligations under that interdict.

THE SYMBIOSIS ARGUMENT

77. The respondents elected to answer the applicants’ case by providing separate answering affidavits: the first to third respondents filed an affidavit in answer to the first and second streams of the challenge, and the fourth respondent filed an answering affidavit in response to the third stream.

78. The applicants criticised this approach, calling it a cardinal and fatal error.  They say that the different streams of relief are cumulative and symbiotic, and that the respondents ought to have addressed them as such.  This is because when the decision to re-open schools is made at the same time as the decision to shift from alert level 4 to 3, the risks and dangers of the pandemic are exponentially multiplied.  They argued that the two decisions were umbilically connected in that the purpose of the re-opening of schools was to free up the parents of learners to return to work.  As we understand it, the rationale behind the applicants’ symbiosis argument was to attempt to demonstrate that each decision was tainted by the other, thus magnifying the alleged unconstitutionality of each.

79. The fact remains, however, that two separate decisions are challenged on constitutional grounds.  It is important not to lose sight of this.  The applicants accept that this Court may grant some streams of relief without the other.  For example, we may grant the relief associated with the first and second streams, but refuse the relief under the third stream, or vice versa.

80. The decision to move to alert level 3 was taken by the third respondent.  It had certain consequences.  What it did not do was to re-open schools.  That was a decision separately made by the fourth respondent.  In fact, had the fourth respondent decided to re-open schools while the nation was still under alert level 4, she could have done so.  This is clear from Part Q of Table 1 annexed to the level 4 regulations that were promulgated on 29 April 2020.  Equally, the fourth respondent did not have to re-open schools at the same time of the shift from alert level 4 to 3.  This is made clear in the 29 April regulations, as discussed earlier.

81. While the experts advising the third respondent recommended that schools re-open at the same time as the economy re-opened, it is a gross over-simplification, and is misleading to say that this was to ensure that the workforce would be available to work at the expense of the safety of learners.  It is clear from the earlier discussion of the respondents’ response to the Covid-19 crisis, that many factors were considered in the recommendations the MAC made, and in the respondents’ response.

82. Each of the decision-makers has explained the basis on which they contend that the decision made was justified.  Each has set out in detail the rationale behind each of their decisions, and the expert advice relied upon in their making.  This Court is called upon to determine different challenges to different executive decisions, and we must approach the matter on this basis.

THE BROAD CHALLENGE: THE MOVE TO ALERT LEVEL 3

The violation of rights issue

83. The applicants accept in their founding affidavit that the respondents’ Covid-19 responses were done in good faith and with a view to striking a balance between health and safety concerns on the one hand, and economic activity on the other.  They readily accept that the move from alert level 4 to alert level 3 will stimulate the economy.  What they say, however, is that:

“the desire to reopen the economy, laudable as it may be, ought not properly to supersede the duty to protect lives in the midst of a deadly pandemic.”

84. From this it is clear that the applicants’ case on the violation of rights issue is founded squarely on the duty of the state to respect, protect, promote, and fulfil the right to life.  It is so that the applicants also refer to the companion fundamental rights of dignity, bodily integrity, and access to health services.  However, the thrust of their case is that the right to life enjoys paramountcy.  As such, the state is constitutionally obliged to act in a manner that does not place the right to life of the populace under threat.  In other words, the applicants say that the state’s paramount constitutional duty is to take whatever steps are necessary to prevent preventable deaths.

85. The applicants contend further that it is axiomatic that the measures taken to re-open the economy by moving to alert level 3 will pose a threat to health and lives.  This is because the measures that are being relaxed (i.e. the alert level 4 measures) were intended to save lives and improve the health status of the populace.  They say that easing the lockdown to level 3 will reverse the prevention of infections and deaths gained by the strict lockdown and alert level 4.  Thus, say the applicants, it is undeniable that the decision to move to alert level 3 infringes or threatens to infringe the right to life and the associated rights identified.  In this regard, the applicants submit that the respondents are undoubtedly in breach of their obligation under s7(2), read with s8(1) of the Constitution.

86. The applicants argue that this infringement or threatened infringement can never be justified under s36 of the Constitution.  This is because the right to life and dignity are paramount and cannot be trumped by the purpose of the decision to ease the lockdown, viz. the need to open the economy.  The decision to ease alert level 4 was made when the numbers of infections are rising, and the increased mobility of people as a result of the easing will exacerbate the spread of infection.  They say that in making the decision, the respondents missed the milestones set by their advisers, and failed to act in accordance with their own criteria.  The applicants assert that the idea that was sold to the populace by government was that lockdown would be eased in line with falling infection rates.  This has not occurred.

87. The applicant’s logic may have a certain appeal at a generalised level.  It may seem, to the ordinary person in the street, to be counter-intuitive or illogical to ease lockdown measures when the number of cases is rising at an increasing rate.  However, when it comes to vetting the constitutional validity of the respondents’ decision to do so, intuition and logic are not the correct measures.  This is because an executive decision of this nature is pre-eminently polycentric and policy-laden.  The DMA gives the executive the power to make these difficult, multi-faceted decisions.  In exercising this power, the executive must obviously respect, protect, promote and fulfil all fundamental rights implicated.  But even this involves a range of choices as to how best to do it.  Therefore, it is not useful, and may indeed be misleading, to appeal to the logicality of a decision of this nature in challenging its constitutional validity.  Instead, this Court must look to the relevant principles of law that apply.

88. In the first place, it is well settled in our law that there is no hierarchy of rights under the Bill of Rights, and that different rights may compete against each other.[32]  The proper approach to adopt in such a case was explained by Froneman J, as he then was, in Gardener v Whitaker,[33] as follows:

"It seems to me that where the alleged infringement of one fundamental right has to be determined in the context of another competing fundamental right the Constitution creates no hierarchy of fundamental rights. The limitation clause (s 33) is of little help here, because by its very inclusion as a fundamental right in chap 3 of the Constitution, such a right already by definition complies with the requirements of s33, viz that of being reasonable, necessary and justifiable in an open and democratic society based on freedom and equality. It can also hardly be said that one fundamental right can negate fully the content of another fundamental right."[34]

89. The Court went on to state that:

"Where it is sought to justify the infringement of a fundamental right by virtue of a law of general application (which does not embody a fundamental constitutional right), placing the onus for such justification on the party relying thereon is easily explained. The limitation, after all, seeks to diminish a right regarded as fundamental by the Constitution. As stated above the same cannot be said of competing fundamental rights. They are inherently of equal value in terms of the Constitution. The precedence of one over another in a competing situation would depend entirely on the context in which the clash of interests occurs. In such a case a court of law is called upon to decide the matter by balancing the competing interests in much the same way as unlawfulness is established in a delictual action according to the standard of the boni mores of the community (cf Minister van Polisie v Ewels 1975 (3) SA 590 (A) at 596H-59TC). It seems eminently reasonable in practical terms (and because, conceptually, justification in terms of s33 does not arise in a matter concerning competing fundamental rights) to require that a plaintiff who seeks to rely on the precedence of one fundamental right over another should bear the onus of establishing the basis for such precedence. Having done so, it may then still be possible for a defendant to defeat the claim by relying on a defence justified by a rule of law of general application but the onus of showing that it complies with s 33 (the limitation clause) would then, in that regard, rest on the defendant."[35] (emphasis added)

90. In this case, the constitutional issue implicates a range of fundamental rights, which pull in different directions.  The measures the state adopts to deal with the threat posed to the right to life must in turn safeguard and protect other constitutional rights which are also affected by the Covid-19 crisis.  Section 7(2) expressly requires this of the state.  These include, for example, the right to reasonable access to health care services for all the population, and not only for Covid-19 patients; the right to freedom of movement; the right to dignity which attaches to the ability to earn a living and feed one’s family; the right to free choice of one’s trade, profession and occupation; and the right to property.  Moreover, the measures that the state adopts must also not hinder its ability to meet its constitutional obligations progressively to provide access to housing, social-welfare, health care and education.  The health of the economy and fiscus are central to its ability to do so.

91. Even within the context of the right to life, there are interests that pull in a different direction.  It has been held that the right to life means something more than biological life.  It is intertwined with the dignity of human beings.  Both are central to a society in which each member of the community is recognised and treasured.  The right to life includes the right to share in the experience of humanity.[36]  Stringent lockdown measures adopted to deal with that threat of Covid-19 threaten this aspect of the right to life.  The measures government adopts to deal with the epidemic must also be sensitive to the need to safeguard, as far as possible, the right to life in its fullest sense.  Thus, the right to life question is not simply about the obligation to guard against preventable deaths.  If this were the case, the applicants ought to have challenged the decision to permit 50 mourners to attend funerals.

92. The principles espoused by Froneman J are particularly applicable in the situation created by the Covid-19 epidemic.  The competing rights are clearly of equal value.  This being the case, it is not sufficient for the applicants to simply state, in general terms, that the decision to move from alert level 4 to alert level 3 results in an obvious and undeniable breach of, or threat to, the right to life.  The applicants bear the onus of establishing the precedence of the rights it relies on – it cannot simply assert that the right to life has precedence.  The applicants must show, why, when measured against other implicated, and equally compelling fundamental rights, the state’s Covid-19 response in moving to alert level 3 violated its constitutional obligations under the Bill of Rights.  It is untenable for the applicants to rely instead on a generalised statement to this effect.

93. As against the applicants’ general claim of the violation of rights, the third respondent sets out chapter and verse on how she, and the rest of the national executive, arrived at the decision to move to alert level 3.  It is evident from the respondents’ response to the crisis, which is covered in detail earlier in this judgment, that they were alive to the complex choices that had to be made as the Covid-19 crisis played out, and to the rights implicated.

94. It is not disputed by the applicants that whatever measures are adopted, they will not eradicate the virus until an effective vaccine is produced.  Whatever measures are adopted to safeguard the population from the threat it poses, must be ones that the country can live with for a period of between 18-24 months.  The applicants accept that the strict lockdown imposed from 26 March to 30 April 2020 was not sustainable.  They do not dispute that the purpose of the strict lockdown was to flatten the curve so that the state could buy time to get its health care resources up to speed to meet the influx of infections that were inevitable.

95. While they do not address the issue, the applicants cannot dispute that the strict lockdown imposed restrictions on a range of fundamental rights.  Had the state continued on a trajectory of a strict lockdown, this would have placed it at risk of a constitutional challenge.  In any event, as indicated above, from inception the respondents and the MAC were clear that the purpose of the strict lockdown was limited, and it was always intended that an easing of lockdown measures would ensue over time.

96. From early on, the respondents, and the MAC understood that Covid-19 did not only present a health crisis for the country, but also an economic crisis.  The third respondent’s answering affidavit addresses this directly.  In it she says that government’s response had to focus on an unprecedented economic crisis, on top of the health crisis presented.  The economic crisis caused by Covid-19 is a world-wide phenomenon.  This has been recognised by the WHO which, in a recent address, noted that as a result of the pandemic “lives and livelihoods have been lost and upended.”  At the end of April 2020, the National Treasury projected that nearly 2 million jobs could be lost in 2020.  It predicted that a worst-case scenario would see the unemployment rate soar to around 50%, from its current rate of just below 30%.  The South African Reserve Bank has forecast that the country’s GDP will contract by over 6% in 2020.  The applicants did not produce any evidence to rebut these predictions.

97. It is within this context that, taking into account the advice of the MAC, the respondents adopted the RAS.  Underlying this approach is the need to balance lives and livelihoods.  It is implicit in this approach that it takes into account the need to protect the lives and health of those members of the population who may be infected with the virus, while at the same time safeguarding other, crucial fundamental rights that are also impacted, such as the right to dignity implicated in the ability to earn a living.

98. The easing of alert level 4 to level 3 was necessary to safeguard against a potential economic catastrophe.  Again, this was a view supported by the MAC.  The MAC’s view was that it was possible to protect both lives and livelihoods, without choosing one over the other.  The respondents have been guided by this expert view.  To label this move as putting profit before lives, as the applicants have done, is to ignore the complexities of the issues involved, and the response to such issues.  It has never been the government’s stance that lockdown will be eased in direct proportion to the rate of infection, as suggested by the applicants.  On the contrary, government’s response has been guided by the extent to which the capacity of the healthcare services can accommodate the number of infections.  The applicants are accordingly incorrect when they accuse the respondents of failing to meet their own criteria.

99. The applicants say blithely that it is not correct that the health care system has been sufficiently capacitated to deal with the rising numbers of infections.  They say that “the numbers speak for themselves”.  It is not clear what numbers the applicants refer to in this regard.  They provide no evidence upon which this court can test their declaration that the health care system is not coping.  This is against the expert views of the MAC which backed the easing of alert level 4 to 3, and indeed recommended that a further reduction in alert level should be done more quickly.  In order to rebut this, it behove the applicants to rely on something more than a general distrust of what the government says to persuade us that the healthcare system is unable to cope, despite the experts’ advice to the contrary.

100. Moreover, the easing of lockdown to alert level 3 is not cast in stone.  A key feature of the MAC’s advice to the respondents, and of the amendments to the regulations that went along with the easing to level 3, has been the adoption of the concept of hotspots.  This gives the respondents the flexibility to further tighten Covid-19 response measures in circumstances where health care services, in a particular metro, province or district, cannot cope with the infection rate.  It also permits the respondents to direct additional resources to those areas to deal with increased infections.

101. It is clear from all the above that the applicants have failed to show that in deciding to move to alert level 3, the respondents violated their constitutional duty to protect the lives and health of the populace.

102. There is a further reason why the applicants cannot succeed in this regard.  As we noted earlier, the exercise of the executive power in making the decision is unavoidably polycentric, and involves the consideration of a range of policy and legislative choices that may be adopted in order to deal with the Covid-19 crisis in a manner that complies with its obligations under s 7(2) of the Constitution.

103. In this context the Constitutional Court has held that:

“… in some circumstances [section 7(2)] imposes a positive obligation on the state and its organs ‘to provide appropriate protection to everyone through laws and structures designed to afford such protection’. Implicit in section 7(2) is the requirement that the steps the state takes to respect, protect, promote and fulfil constitutional rights must be reasonable and effective.

…

Now plainly there are many ways in which the state can fulfil its duty to take positive measures to respect, protect, promote and fulfil the rights in the Bill of Rights. This Court will not be prescriptive as to what measures the state takes, as long as they fall within the range of possible conduct that a reasonable decision-maker in the circumstances may adopt. A range of possible measures is therefore open to the state, all of which will accord with the duty the Constitution imposes, so long as the measures taken are reasonable."[37]

104. And the Court held further that in assessing the reasonableness of conduct, the context within which decisions are made is of fundamental importance. A court must be careful not to usurp the proper role of the decision-maker. In particular:

“[a] decision that requires an equilibrium to be struck between a range of competing interests or considerations and which is to be taken by a person or institution with specific expertise in that area must be shown respect by the Court. Often a power will identify a goal to be achieved, but will not dictate which route should be followed to achieve that goal. In such circumstances a Court should pay due respect to the route selected by the decision-maker."[38]

105. The present case is precisely one in which there are a range of reasonable options open to the respondents to balance the need to safeguard life and health, while at the same time safeguarding the rights and interests associated with protecting the economy.  The applicants do not dispute that the respondents have a range of options open to them to deal with the crisis.  But they disagree with the choice made by the respondents to strike the balance by reducing the alert level from 4 to 3.  In our view, it cannot be said that this was an unreasonable or irrational choice, particularly given the range of protective measures that remain in place, and the option to revert to a higher alert level where this may be indicated.

106. For these reasons, we are not persuaded that the applicants have established that the respondents have violated any of the fundamental rights listed by them, or their obligations under s 7(2) of the Constitution.

107. Even on the assumption that we may be wrong in this regard, in our view, the limitation on rights involved is reasonable and justified under s 36 of the Constitution.  The Covid-19 epidemic threatens the lives and health of the populace.  However, all available evidence indicates that whatever measures are adopted, the threat cannot be avoided.

108. As far as the purpose of the limitation is concerned, it is so that a strict lockdown would provide the greatest safeguard against the threat.  However, a strict lockdown cannot be retained indefinitely, and some measure of easing is accepted by the applicants.  The need to re-open the economy is an important government purpose that is also aimed at safeguarding other fundamental rights.  It is also crucially important to ensure that the government has the fiscal resources available to it to meet its constitutional obligations to provide for, among other things, the realisation of socio-economic rights.

109. The limitation on the right to life and health attendant on the move to alert level 3 has been mitigated.  Before moving to level 3, the state took measures to capacitate its healthcare services to deal with the threat to life posed by the Covid-19 epidemic.  Despite the drop to level 3, the basic preventative intervention measures have been retained, as are a number of other limitations, such as the prohibition on gathering in groups.  While the economy has opened significantly, social limitations remain.  Families and friends may not visit each other in their homes, religious gatherings are limited to 50 people, as are funerals.  Thus, to the extent that the right to life is threatened, measures have been retained to ensure that the threat is no more than what is required by the need to open the economy.  Therefore there is a rational connection between the limitation and its purpose.

110. In respect of whether the state could have adopted less restrictive means to achieve the purpose, it is difficult to see how it could have done so.  Once it is accepted that safeguarding the economy is a legitimate government purpose, it follows that the move to alert level 3 was justified.  It is important to bear in mind, as noted earlier, that the regulations specifically cater for flexibility in government’s response.  In hotspot areas, where the right to life and health come under unmanageable threat, stricter lockdown measures may once again be imposed.

111. For these reasons, we conclude that there is no merit in the applicants’ challenge to the constitutionality of the decision to move to alert level 3 based on the violation of rights issue.

The legality/rationality issue

112. The applicants’ challenge here rests on the interpretation of ss27(2) and (3) of the DMA.  As we explained earlier, under s27(2), the third respondent has the power to make regulations or issue directions concerning a range of things.  Paragraph (n) of that section includes the broad power to make regulations or issue directions on “any other steps that may be necessary to prevent an escalation of the disaster, or to alleviate, contain and minimise its effects”.

113. Section 27(3) provides that:

“The powers referred to in subsection (2) may be exercised only to the extent that this is necessary for the purpose of:

(a) Assisting and protecting the public;

(b) Providing relief to the public;

(c) Protecting property;

(d) Preventing or combating disruption; or

(e) Dealing with the destructive and other effects of the disaster.”

114. In a nutshell, the applicants say that the limitation of the power to make directions “only to the extent necessary” for the purposes set out in paragraphs (a) to (e), introduces a “strictly necessary” requirement with which the third respondents’ direction to move to alert level 3 had to comply.  If the direction was not strictly necessary for those listed purposes, then it would be irrational, or illegal in the constitutional sense that it would deviate from the purpose of the empowering provision.

115. The applicants contend that the move to alert level 3 does not meet the strictly necessary requirement.  This is because the paramount purpose of the empowering provision is to protect the public.  It is not to re-open the economy in circumstances where this would increase the rate of infections.  Their contention is that the direction to move to alert level 3 stands to be reviewed and set aside on this basis that it falls foul of the principles of rationality and legality inherent in the rule of law.

116. Regardless of whether the phrase “only to the extent necessary” introduces a requirement of strict necessity or not (and we make no determination in this regard), the section does not support the applicants’ contention that the paramount purpose is to protect the public.  This is contrary to paragraph (a) itself, which uses the phrase “assisting and protecting” the public.  It could hardly be argued that re-opening the economy does not assist the public, or that such measure was not necessary for the purpose of assisting the public.  It is also contrary to the section as a whole, which includes a list of five purposes, which are clearly listed as alternatives.  There is no indication that the purpose under paragraph (a) has primacy.  In any event, reopening the economy in the context of the Covid-19 crisis is necessary to protect the public interest.

117. Moreover, the listed purposes are framed in wide and general terms.  One can think of any number of measures that might be said to be necessary to “provide relief” or “prevent disruption” or “deal with the effects of the disaster”.  The broad palette of purposes listed is consistent with the many forms that a state of disaster might take.  It makes sense that the executive is directed by broad, rather than narrow objectives to meet in exercising its powers.

118. Finally, as we have discussed, Covid-19 presents both a health and economic disaster for the nation.  The respondents are obliged to act in the public interest to address both aspects of the disaster.  The limited operation of the economy under the more stringent level 4 measures caused obvious disruption, constituted a threat to property, and had a potentially far-reaching, and long-term destructive effect on the economic well-being of individuals, as well as the public as a whole.  To this end, the re-opening of the economy under the scheme adopted for alert level 3 was necessary, indeed, even strictly necessary, if that is the standard, to achieve the purposes listed under s 27(3).

119. We find that there is no merit in the applicants’ challenge to the decision to move from alert level 4 to 3 on the basis of the legality/rationality issue.

120. It follows that the applicants’ application to review and set aside this decision of the third respondent, and the consequent promulgation of chapter 4 in the 28 May regulations, must fail.

THE NARROW CHALLENGE: THE RE-OPENING OF SCHOOLS

The case for the Applicants

121. As we understand it, the applicants do not seek permanent relief in respect of the fourth respondent’s decision re-open schools.  Rather, they seek an order to set aside the announcement and the implementation of the re-opening of schools, coupled with an order that the setting aside be suspended to enable the fourth respondent to submit various readiness and implementation plans for approval before schools may be re-opened.  They argue that the decision to re-open schools in the current context is irrational, constitutes a violation by the fourth respondent of her obligations in terms of s7(2) of the Constitution, as well as a violation of the rights in the Constitution.

122. In addition, they seek a permanent interdict that prevents the staggered re-opening of schools based on the readiness of each school.  They want all schools to re-open simultaneously when they reach the required state of readiness.

123. In analysing the relief sought, it must be evident and follow quite logically that the stance of the applicants is that the re-opening of schools will not be constitutionally offensive provided the re-opening is preceded by readiness and implementation plans that are approved.  The current complaint of the applicants is that school learners face the risk of their rights being violated if the plans of the fourth respondent are not accompanied by implementation plans.  The relief they seek against the fourth respondent is based on various self-standing but inter-related grounds.

124. As we explained in our synopsis earlier, the applicants say that the decision to re open schools is ultra vires the provisions of the DMA.  We deal with this below under the legality/rationality heading.

125. They say further that the decision is unconstitutional in that it results in the unjustified violation of various rights of members of the school community as well as those beyond it.  In this regard, it is also in breach of the duties the fourth respondent carries in terms of s7(2) of the Constitution.  We deal with this under the violation of constitutional rights heading.

126. While the applicants’ constitutional rights challenge is wide and far ranging, it appears to have its factual basis on what the applicants call “the implementation issue”.  The applicants accept that the fourth respondent has devised plans pertaining to the re opening of schools.  However, as we understand the attack, they say that plans without implementation measures, or plans that are unimplementable, will violate rights.  This will result in a breach by the fourth respondent of its obligations in terms of Section 7(2) of the Constitution.

127. On the implementation issue, we will consider, first, the question of whether the fourth respondent was obliged in law to prepare an implementation plan or provide measures for implementation.  Second, and if so, whether the plans for the re opening of schools evidence an absence of implementation measures and, on account of that, will likely result in the violation of rights of the school community.

128. Under the heading, supervisory relief, we deal with the applicants’ contention that on account of these violations, the Court should grant a supervisory interdict to ensure there is court sanctioned approval and supervision exercised over the process of re opening schools.

129. Finally, we deal with the applicants’ submission there should be the simultaneous re opening of all schools and not a staggered re-opening based on the readiness of each school.

130. As a starting point, however, and notwithstanding the narrow remit of the relief claimed as against the fourth respondent, the ambit and range of the issues raised make it necessary to deal carefully, and in some detail, with the process and factors that went into the original decision to close schools, and the decision in principle to plan for their re-opening.  We need to examine the considerations that informed the decisions, as well as the steps and measures that have been taken towards the re opening of schools.  This is necessitated by the public interest that the issues raise, and the understandable concern and anxiety in many quarters, particularly on the part of parents whose children face a return to school.

131. It is also necessary to do so in the light of the stance taken by the applicants that the conduct of the fourth respondent in re-opening schools demonstrates a wanton disregard for the lives and interests of children; that the future of South Africa’s children is being placed on the altar of economic and financial interests; and that the decision to reopen schools is tantamount to sending children into the raging fire of Covid-19.  These are serious accusations that are levelled against a government that carries the responsibility to act in the best interests of the child at all times.

132. Of course, if there is any veracity or support for what the applicants say, they should be vindicated but equally if they are made without a proper basis then this Court must also express that to be the case. Such serious allegations, if found to be true, would constitute a gross dereliction of the duty that rests on government and it is also for that reason that a full exposition of what occurred is necessary.

An overview of the steps leading to the decision to initially close schools and then to re-open them

133. In the affidavit filed by Mr Hubert Mweli, the Director General of the Department of Basic Education, he sets out in some detail the decisions taken over time regarding the decision to close, and then to re-open schools.

134. In dividing the timeline from about mid-March to June, he describes the first phase of the process that led to the closure of schools as being “almost an automatic response” to the onset of the Covid-19 crisis.  Given that little was known of the virus at that stage, and using the learning gained from dealing with other pandemics over time, the thinking then was that the immediate closure of schools would lead to a reduction in contacts made by young people and thereby reduce the opportunity for the transmission of Covid-19.  This was largely the response in countries across the world and was also the response of the South African government.

135. As new learning unfolded, he describes the second phase of the process as providing some evidence that very few children were becoming ill.  However, given the uncertainty that still existed in many quarters, a cautious approach meant that schools continued to remain closed.

136. The decision to close schools carried with it many adverse consequences for learners and their families.  They included concerns that: -

(a) Children were desirous to return to school and it was important to attempt to facilitate this, given the need to safeguard the growth, development needs and the well-being of children.  In addition, the school environment played a considerable role in meeting the important social, psychological and physical needs of children.

(b) The longer children were away from school, the greater the impact it would have on their long-term education and their life opportunities.

(c) Children who were at home remained at risk in many instances to other threats to their well-being, including domestic violence and other forms of neglect.

(d) The ongoing closure of schools deprived millions of children of access to the benefits of the school nutrition programme.

(e) The ongoing closure of schools would also mean that, in many instances, parents would be unable to return to work for as long as schools remained closed.

(f) The continued closure of schools was likely to deepen inequalities between learners at affluent schools, who were able to offer online learning during the time of closure, as opposed to poorer schools, for whom capacity and technological inadequacies made remote learning impossible.

(g) For many children, in particular those from disadvantaged communities, who lived in deplorable and overcrowded conditions, the risks created by their environment was probably greater than any risk they would face on returning to school.  Mr Mweli suggested that for many such children, school presented a safer environment.

137. Mr Mweli then describes the developments that led to a change in stance on school closures in the third phase of the process.  He says research data was now more decisive in showing that children rarely demonstrated symptoms of Covid-19; that they seldom contracted the virus; and that they were regarded as exceptionally low transmitters of Covid-19. This, he says, significantly influenced the rationale for the re-opening of schools coupled, as it was, with the ongoing adverse effects that school closures brought.

138. In this regard Mr Mweli relies on the opinion of Mr Martin Gustafsson, an education economist at the University of Stellenbosch.  Mr Gustafsson says that even though in early February 2020 the evidence of children contracting Covid-19 showed very low infection rates, by mid-April the research was more conclusive to that effect.  He goes on to add that there is virtually consensus across the research spectrum around Covid-19 that not only do children demonstrate low infection rates but also that they are exceptionally low transmitters of the virus.

139. Relying on this significant information as well as the concerns regarding the ongoing adverse effects of the closure of schools on the lives and futures of children, the fourth respondent made a presentation to the National Command Council on Coronavirus on 29 April 2020 on the re-opening of schools.  It was agreed that the fourth respondent and the Department of Basic Education (DBE) should commence with the planning and preparation for the re-opening of schools.

140. Mr Mweli also points out that in the period between the 26 March and 30 April 2020, the fourth respondent and the DBE were involved in an extensive process of consultation with a range of stakeholders including teacher unions, school governing bodies, provincial educational authorities and others.  What emerged from this engagement was some common understanding that the objective of re-opening schools had to be achieved without compromising the safety and health of learners, teachers and employees.  Also, that the right time to re-open schools would only be when these concerns were met.  It is these consultations that also shaped the thinking around what kinds of plans would be required to meet the concerns.

141. Mr Mweli makes reference to a series of plans, measures, protocols and interventions that were devised and adopted to deal with a variety of issues that had the potential to impact on school safety, as well as plans aimed at recovering what had been lost in the school year.  These included:

(a) A Risk Adjusted Strategy for Basic Education.  This is an overarching document that covers all the areas that will impact on the safety and health issues associated with the re-opening of schools.

(b) The Criteria for the Re-opening of Schools.  This constitutes a checklist incorporating matters such as social distancing, hygiene and protective equipment, water and ablution, the wearing of masks, cleaning and disinfection, infrastructure and transport.

(c) Standard Operating Procedures, which deal with screening of learners and others (including the frequency of the screenings and who takes responsibility for them), the cleaning of schools where cases of Covid-19 arise, and dealing with and enquiring into school absenteeism.

(d) The School Recovery Plan, which details how lost school days will be recovered from holiday periods in order to make up for lost teaching days.

(e) Guidelines for Schools on Maintaining Hygiene.  This provides details of, amongst other matters, hygiene and sanitation packs that have been made available and continue to be provided to schools, including masks, gloves, soap, sanitisers and disinfectant.

(f) A Risk and Mitigating Plan and Register. These documents describe each area of risk, it’s root case, its rating and the intervention required to mitigate the risk.  They are also a tool by which each area of risk can be monitored and implemented.

(g) Guidelines for developing new timetables.

(h) Guidelines for De-concentration and Social Distancing in Schools and Offices.  These cover areas such as floor plans that require a 1.5 m spacing between learners and the provision of desks to facilitate social distancing, as well as social distancing during school breaks and the role of teachers in this regard.

(i) An Implementation Protocol in respect of water supply to schools.

142. These plans and measures appear to be comprehensive, covering each area of activity that represents a potential risk to learners, teachers and employees on the re-opening of schools.  Many of them are sufficiently detailed to constitute what may be described as an implementation process in the sense that it covers what it is be done, how it is to be done, and by whom it is to be done.  At the same time, it must be evident that given the disparity of resources that exist, coupled with the different levels of learner densities across schools, some schools would be able to implement the measures more easily than others.  Invariably, challenges were bound to arise in the implementation process.

143. With this in mind, the planning in terms of the timetable for the return to school called for the office staff to return first.  This was to enable them to supervise the cleaning and sanitisation of the schools.  Once this had been done, school management would return to oversee the preparation of the schools for learners.  This would be followed by the return of teachers, and then finally, the return of learners would occur.  What clearly emerges is a carefully thought out process to ensure the greatest possible risk reduction before the return of learners.

144. Finally, and on 29 May 2020, the fourth respondent, acting in terms of the powers she has under the DMA, issued the direction and regulations declaring the re-opening of schools.  Those regulations provide for the phased return of educators and others to school and in particular, provide in s4(2) that only schools and offices that have complied with the minimum health, safety and social distancing measures contemplated in the direction and regulations will be allowed to re-open.

145. The decision on the part of the fourth respondent to reopen schools enjoyed the support of the South African Medical Association, the South African Paediatric Association and the Paediatric and Adolescent Endocrinology and Diabetes Society.  All of these bodies undertook their own risk benefit analysis and concluded that the benefits associated with a return to school in a manner that managed the associated risks was ultimately in the best interests of children and was to be supported.

146. The decision to re-open schools also accords with the position adopted by UNESCO who articulated the rationale that supported the responsible reopening of schools in the following terms:

"... the adverse effects of school closures on children' safety well-being and learning are well documented, interruption in education services also has serious long-term consequences for economies and societies such as increased in inequality, poorer health outcomes and reduced social cohesion.... National governments and partners must simultaneously work to promote and safeguard every child's right to education, health and safety, as set out in the Convention on the Rights of the Child. The best interest of the child must be paramount. Across countries leaders are grappling with difficult and uncertain trade-offs as they consider easing lockdowns. This framework serves to inform the decision-making process on when to reopen schools, support national preparations and guide the implementation process, as part of the overall public health and education planning processes. Contextualisation and continuous adaptation are necessary in order to respond to local conditions and meet each child's learning, health and safety needs."

"Disruptions to instructional time in the classroom can have a severe impact on a child's ability to learn. The longer marginalized children are out of school, the less likely they are to return. Children from the poorest households are already almost five times more likely to be out of primary school than those from the richest. Being out of school also increases the risk of teenage pregnancy, sexual exploitation, child marriage, violence and other threats. Further, prolonged closures disrupt essential school-based services such as immunization, school feeding, and mental health and psychosocial support, and can cause stress and anxiety due to the loss of peer interaction and disrupted routines. These negative impacts will be significantly higher for marginalized children, such as those living in countries affected by conflict and other protracted crises, migrants, the forcibly displaced, minorities, children living with disabilities, and children in institutions. School re-openings must be safe and consistent with each country's overall Covid-19 health response, with all reasonable measures taken to protect students, staff teachers and their families."

147. It is these plans and measures that the applicants, in their founding papers, describe as detailed and well intentioned. The second applicant says that:

“….we also accept that there are numerous plans and safeguards which have been devised by the respondents to mitigate the obvious risks associated with the reopening of schools. Those plans are detailed and well-intentioned, I refer for example to the draft Schooling Recovery Plan, Standard Operating Procedures, Criteria for the Reopening of Schools, as well as the applicable regulations and directions issued by the Basic Education Minister.”

148. There is on the papers no critique of the plans and interventions taken by the fourth respondent.  Nor are any deficiencies highlighted, save for what the applicants complain is the lack of implementation measures.  Aside from the concession by the applicants on the sufficiency of the plans, our views are that the plans, which we have summarised above, are detailed and well-considered.  In addition, if regard is had to the process of consultation, the range of risk factors considered, as well as the mitigating measures put in place, the decision to re-open schools was a properly considered one that took into account the safety and the health of the broader school community.

Legality/rationality

149. The Applicants argue that the decision to reopen schools does not accord with the requirements of s27(2) and s27(3) of the DMA.  We set out earlier what these provisions entail.

150. While the applicants do not dispute the legal authority of the fourth respondent to take decisions that include those that relate to the re-opening of schools, they say that the decision may only be exercised to the extent that it is strictly necessary for the purposes as set out in s27(3).  In their view, this test is not met as the decision and the outcomes it seeks to achieve does not correspond with the purposes for which the power may be exercised in terms of s27(3)(a) to (e).  We have already dealt with the broad ambit of the applicants’ complaint in this regard in response to the legality/rationality challenge to the decision to move from alert level 4 to 3.  The same interpretational considerations apply here too.

151. One of the purposes of the exercise of the power under s27(3) is that it must be necessary for the protection and assistance of the public.  In this regard, from the factual overview provided, it is clear that the factors that motivated the fourth respondent to decide on the re-opening of schools, traversed a number of areas.  Among them was the well-being and development needs of children, the need to secure their ongoing development and growth, as well as their physical, psychological and educational needs.

152. This was a view that was not only consistent with the stance of UNESCO but was also a view supported by a number of organisations in South Africa that have expertise in healthcare generally, and in particular around the issues that affect children.  To that extent it can hardly be argued that the decision was not in pursuit of the purpose of assisting and protecting the public, and in particular children.  It cannot be concluded that it was not necessary in the circumstances contemplated by s27(3)(a).

153. Curiously, the applicants have not advanced any cogent reasons why they contend that the decision was not necessary or that its outcome would fall outside of the purposes for which the fourth respondents’ powers may be exercised as set out in s27(3).  Their argument seemed to focus solely on the assumption that because children and other members of the school community would be exposed to Covid-19 by the return to school, the re-opening of schools was the antithesis of the protection requirement in s27(3)(a).  In our view, this is far too narrow an understanding of the needs and interests of children.  It thus fails to take into account that a return to school serves a range of needs and is thus a measure that protects and assists their interests.

154. The suggestion that the decision was illegal, or irrational is hardly sustainable, in particular when one has regard to the test for rationality that our courts have developed over time. In Pharmaceutical Manufacturers Association of SA and Another: In re ex parte President of the Republic of South Africa and Others,[39] the Court described the test for rationality in the following terms:

"Rationality in this sense is a minimum threshold requirement applicable to the exercise of all public power by members of the executive and other functionaries. Action that fails to pass this threshold is inconsistent with the requirements of our Constitution, and therefore unlawful. The setting of this standard does not mean that the courts can or should substitute their opinions as to what is appropriate, for the opinions of those in whom the power has been vested. As long as the purpose sought to be achieved by the exercise of public powers within the authority of the functionary, and as long as the functionary's decision, viewed objectively, is rational, a court cannot interfere with the decision simply because it disagrees with it, or considers that the power was exercised inappropriately. A decision that is objectively irrational is likely to be made only rarely but if this does occur, a court has the power to intervene and set aside the irrational decision.”[40]

155. The applicants accept that children have a constitutional right to education.  This places an obligation on the fourth respondent to respect, protect, promote and fulfil this right.  The decision to re-open schools fell within her sphere of authority.  Furthermore, it was quite obviously rationally connected to the scope of her constitutional obligations.  The applicants’ subjective view that the decision should have been delayed is not the test for rationality.

The violation of constitutional rights

156. It is not clear whether the applicants intended to mount a challenge based on s7(2) of the Constitution separate from their challenge to the alleged violation of a list of fundamental rights.  In our view, it is appropriate to deal with them together.

157. Section 7(2) of the Constitution obliges the state to respect, protect, promote and fulfil the rights in the Bill of Rights.  The applicants complain that the decision to re-open schools would constitute a breach on the part of the fourth respondent of the obligations that s7(2) imposes on her.

158. In particular they say that the re-opening of schools will place the school community at risk and will threaten and/or undermine various rights to which members of that community, and particularly the learners, are entitled.  These include the right to life, the right to dignity, the right to equality, the right to health care and the right to education.  In addition, they say that the re-opening of schools will offend against the best interest of the child principle which is founded in the Bill of Rights.

159. As we discussed earlier, both decisions that are impugned in this case involve a range of rights, which are all capable of being given effect to in an appropriately balanced manner.  The applicants have asserted that the right to life should enjoy primacy and precedence in the decision of the fourth respondent but makes that assertion on the basis that the right to life is at the top of the hierarchy of rights.  We have already dealt with this argument in the context of the challenge to the decision of the third respondent to move from alert level 4 to 3.  As we have indicated, the argument that the right to life is hierarchically superior to other fundamental rights is jurisprudentially unsound.

160. The fourth respondent says that in deciding on the re-opening of schools, the point of departure was the safety of learners, and that the considerations that impacted on learner safety weighed heavily with her and received attention at all levels of the process.  In this regard there were certainly competing rights that came up for consideration and they include the right to basic education in terms of which the fourth respondent primarily carries the responsibility to discharge.  The importance of the right in the context of a developing country such as ours is beyond debate.

161. The United Nation's Committee on Social, Economic and Cultural Rights on the Right of Education (1999) commented on its importance in the following terms:

"Education is both a human right in itself and an indispensable means of realizing other human rights. As an empowerment right education is the primary vehicle by which economically and socially marginalised adults and children can lilt themselves out of poverty and obtain the means to participate fully in their communities. Education has a vital role in empowering women, safeguarding children from exploitative and hazardous labour and sexual exploitation, promoting human rights and democracy, protecting the environment, and controlling population growth. Increasingly, education is recognised as one of the best financial investments States can make. But the importance of education is not just practical: a well- educated, enlightened and active mind, able to wander freely and widely, is one of the joys and rewards of human existence."

162. At the same time, the risk to the health and well-being of the school community was also a factor that weighed heavily with the fourth respondent.  This is demonstrated by the detailed plans devised under her authority.  She took the decision to re-open schools using the health and safety of school communities as a point of departure, coupled with expert scientific information that infection rates amongst children were low and that children are exceptionally low transmitters.

163. Far from representing a choice between education and life, the decision was preceded by a number of measures that were geared towards protecting the health and safety of learners and the broader school community.  There is no evidence that the fourth respondent took a callous approach, demonstrating a wanton disregard for the health and safety of the school community.  The evidence compellingly shows that indeed the right to life served as the departure point for the fourth respondent in reaching the decision that she did.

164. It may well have been different had the expert evidence showed otherwise – that children were highly prone to infection, or that they are highly contagious carriers, or that they more likely to become seriously ill than other members of the population if infected.  But Mr Gustafsson confirms that this is not what the scientific learning says. The available learning at the time the decision was made indicates that any threat posed to children by the re-opening of schools was a minimal risk.

165. Therefore, in our view it must follow that in the balancing exercise between the competing rights, the balance was appropriately struck between the right to life and other implicated rights, such as the right to education, and the right to food.  On balance, the best interests of the child were not violated by the decision to re-open schools, albeit that there is inevitably some risk involved.  The fourth respondent paid substantial regard to the need to mitigate these risks.  It can hardly be said that the decision exposes the school community to risks which have not been properly considered and in respect of which adequate mitigatory measures have not been put in place.

166. The final component of the violation of rights challenge relates to the implementation issue.  The applicants say in order to fulfil her obligation under s7(2) of the Constitution, the fourth respondent had to go further than merely putting her existing plans in place.  To protect the right to life and other listed rights of learners and other members of school communities, the fourth respondent was obliged to devise implementation plans that were implementable.  In the absence of this step, say the applicants, the plans devised by the fourth respondent to protect school communities from the risks associated with Covid-19 are merely words on a wish list.  This falls short of compliance with her s7(2) obligation.  As the applicants put it, in the absence of an implementation plan in respect of each protective measure devised by the fourth respondent, those measures are doomed to fail.

167. The first question to consider in this regard is whether there is a legal obligation on the fourth respondent to make implementation plans, over and above the plans that are already in place.  In the first instance the applicants rely on Grootboom[41] and TAC[42] to advance the submission that the implementation plans they require of the fourth respondent are ordinarily what is required when an organ of state is obliged to discharge a human rights obligation.

168. In Grootboom, the Court in dealing with the standard required of an organ of state in discharging its obligations in respect of the right to housing articulated that standard as follows:-

“The state is required to take reasonable legislative and other measures. Legislative measures by themselves are not likely to constitute constitutional compliance. Mere legislation is not enough. The state is obliged to act to achieve the intended result, and the legislative measures will invariably have to be supported by appropriate, well-directed policies and programmes implemented by the executive. These policies and programmes must be reasonable both in their conception and their implementation. The formulation of a programme is only the first stage in meeting the state’s obligations. The programme must also be reasonably implemented. An otherwise reasonable programme that is not implemented reasonably will not constitute compliance with the state’s obligations.”[43]

169. The applicants interpret this to mean that in addition to devising plans that could be implemented, the fourth respondent was required to devise separate implementation plans in order to be compliant with her constitutional obligation under s7(2).  The applicants point to s35(1) of the Intergovernmental Framework Relations Act (IFRA),[44] which states that:

“(1) Where the implementation of a policy, the exercise of a statutory power, the performance of a statutory function or the provision of a service depends on the participation of organs of state in different governments, those organs of state must co-ordinate their actions in such a manner as may be appropriate or required in the circumstances, and may do so by entering into an implementation protocol.”

170. The applicants say that these provisions obliged the fourth respondent to enter into formal implementation protocols with relevant organs of state, and that she failed to do so in all but one case.  They point to the existence of the Water Implementation Protocol that was entered into with Rand Water.  The applicants argue that all the other plans made by the fourth respondent fail to measure up to this protocol, and thus that the fourth respondent did not comply with her legal duties before declaring that schools should re-open without the necessary protocols in place.  The applicants also refer to the definition of “disaster management” in the DMA which means: “a continuous and integrated multi-sectoral, multi-disciplinary process of planning and implementation of measures aimed at- …” (emphasis added).  They say that this supports their submission that implementation plans are integral to the legal obligations of the fourth respondent.

171. We are not persuaded that the fourth respondent was required to devise additional implementation plans in order to fulfil her constitutional duties under s7(2) before declaring that schools should re-open.  In Grootboom the Court made the point that government is required to do more than legislate: it must adopt policies and programmes and put them into action in order to fulfil its constitutional obligations.  The Court did not pronounce on whether this required additional plans for implementation.  This is no surprise.  In our view, in a case like this one, provided there are plans in place to direct the implementation of steps designed to safeguard rights, it should not matter what these are called.  The IFRA does not make the conclusion of protocols mandatory.  At most, organs of state are required to consider their adoption in certain circumstances.  Nor does the definition of disaster management impose any obligation in this regard.  Obviously, the management of a disaster requires the implementation of measures to deal with that disaster.  But this does not mean that there is a bright line between planning, in general, and implementation plans.  The question really is whether the plans are sufficient to direct the implementation of necessary measures.

172. The second question to consider is whether the measures introduced by the fourth respondent in the form of the raft of plans and guidelines referred to earlier are adequate.  As discussed, these were put into place to direct the relevant authorities and members of the school community on what had to be done, and by whom, in order to ensure that schools were ready for their re-opening, and to safeguard members of the school community as best as possible thereafter.  The applicants do not take issue with the details of these plans.  This should be the end of the matter.  If there are problems with the implementation on the ground, the fourth respondent retains an obligation to see that the problems are ironed out.  If she fails in this duty in any instance, then that may be the subject of a specific challenge.  However, it is not an issue with which we need to concern ourselves at this stage.

173. We conclude that the implementation issue does not provide a basis for finding that the fourth respondent failed in her obligations under s7(2).

Justification

174. Our finding above is based on the premise espoused in Gardner v Whitaker, cited earlier, that the proper approach to a violation of constitutional rights challenge is to embark on a balancing exercise between the competing rights.  However, if we are incorrect in this approach and in our conclusion, and in the event that the decision of the fourth respondent indeed infringed the right to life and the other rights listed by the applicants, then it remains open to the fourth respondent to justify such infringement by reference to law of general application.  Without conceding the need to do so, the fourth respondent contends that if there was an infringement it would have been justified in terms of the Disaster Management Act.

175. She says that the following factors serve to justify such infringement:-

(a) The available scientific evidence suggesting that children are low recipients and low transmitters of the virus.

(b) The preparation of comprehensive readiness plans that would precede the re opening of schools.

(c) The interruption of education for the learners of South Africa since about the middle of March 2020.

(d) The fact that distance learning is not a viable option for the large majority of public schools, and particularly for those serving poor and vulnerable learners.

(e) The ongoing closure of schools would in many instances prevent the return of parents to work.  This has a negative impact on their ability to support their families and, consequently, on their dignity.

(f) The fact that the ongoing closure of schools would cause harm to the mental, social and physical development of learners.

(g) The increased risk that many learners face in the home and community as a result of the ongoing closure of schools including domestic violence and other forms of neglect.

(h) The denial of the right to food for millions of learners who are unable to access the food nutrition scheme.

(i) The concern that the ongoing closure of schools would deepen inequalities between affluent and poor schools.

(j) The effect that the loss of a school year would have in overburdening and compromising the school system as a whole.

176. The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors.

177. The first factor is the nature of the right.  While the right to life is implicated in the re opening of schools, the available evidence indicates that the risk to children in this regard is low and that even if infected, children seldom present with serious illness.  As far as the rights of adult members of the school community are concerned, as we noted earlier, until a vaccine is found, the virus presents a risk that cannot be avoided regardless of any measures the state adopts.  Schools simply cannot stay closed indefinitely.

178. This feeds into the second factor to consider, viz. the importance of the purpose of the limitation.  The decision to re-open schools serves an important constitutional purpose.  That is to advance and give effect to the right to basic education.  It also serves other purposes, such as the right to dignity, which is impinged by the denial of access to education, and the social and developmental needs met within the school environment.  In short, the continued closure of schools, despite the precautionary measures that have been put in place, would not serve the best interests of children.

179. As to the nature and extent of the limitation, the risk to life and health is substantially moderated by an extensive set of plans and measures designed to mitigate as best as possible the risk posed.  There is a clear connection between the limitation and its purpose, which is the fourth factor for consideration.  But for the limitation, the attainment of the host of other important rights cannot be advanced.

180. Finally, we must consider whether less restrictive means could have been used to achieve the same purpose.  As the fourth respondent demonstrated in her answer, the reality in South Africa is that the vast majority of public school communities are not able to offer distance learning.  The choice is thus a stark one: open public schools, or accept that the vast majority of learners will not be educated for so long as they remain closed.  The re-opening of schools could not be avoided.  The extensive mitigating measures provide sufficient evidence that the least restrictive means were used.

181. We accordingly conclude that, applying the limitation exercise, the limitation is reasonable and justifiable in an open and democratic society as required by s36.

182. In conclusion, the contention that the fourth respondent acted in breach of s7(2) and that her decision would result in the infringement of various rights of children can therefore not be sustained and the declaratory relief must accordingly be refused.

The supervisory relief

183. In their Notice of Motion the applicants link the supervisory relief to the declaration of invalidity of the fourth respondent’s decision to re-open schools.  In prayer 2.3 they ask that that decision be declared to be “inconsistent with the Constitution, unlawful and invalid, to be unlawful, irrational, unconstitutional and invalid.”  Then, in prayer 4, they ask for an order:

“Directing that the declaration of invalidity is suspended for a period of 60 days, during which the respondents must provide, under the direct supervision of this Honourable Court alternatively of a mutually agreed independent supervisory body, proof of the existence of a comprehensive readiness and implementation plan, which must precede the simultaneous reopening of any grade or category of learners and must include:

4.1. a detailed plan in respect of the provision, distribution and storage of protective equipment;

4.2. a detailed plan for the restoration of infrastructure in relation to schools vandalised during the lockdown;

4.3. a clear plan in relation to the safe delivery of food as part of the national school program;

4.4. social distancing rules in respect of overcrowded and other schools; 4.5. special assistance programmes for children with disabilities;

4.6. risk mitigation strategies for teachers, parents and school staff who will come into contact with learners;

4.7. a plan to prevent the direct and indirect discrimination against economically and historically disadvantaged learners; and

4.8. a detailed plan to consult relevant stakeholders in the education sector.”

184. As we have found, the applicants have failed to establish that the fourth respondent’s decision was unlawful, irrational, unconstitutional and invalid.  As such, it follows that the consequent relief prayed for in prayer 4 falls away.  However, we proceed to deal with the issue in the event that we may be wrong in concluding that the applicants are not entitled to the declaratory and review relief in respect of the decision to re open schools.

185. In their founding affidavit, the applicants say on this score:

“However, the objective evidence placed before this court and the track record of the state strongly suggest that these plans are unlikely to work or be properly implemented in the concrete world on the ground. They may be good on paper, but citizens cannot realistically be expected to trust that what the government says at the rhetorical level will be matched by what will actually occur on the ground. Hence, the prayer for independent supervisory relief is less aimed at the alleged absence of credible plans and policies but more at their verifiable and supervised implementation.”

186. Thus, on the case of the applicants, there is an unequivocal acceptance of the adequacy of the content to the plans that precede and will regulate the re-opening of schools but the need for supervisory relief is triggered by what they say is the unlikeliness of the plans working on the ground and the lack of trust that citizens have in the government.

187. The applicants provide no evidence in support of their assertions of a poor track record on the part of government, of the unworkability of the plans or indeed of the lack of trust on the part of citizens in the government. Their case in this regard is premised on nothing more than bald statements, assertions and conclusions of fact without any underpinning or supporting evidence.

188. Leaving aside the case advanced on the papers by the applicants, we deal with whether, as matter of law, the plans the applicants seek to have submitted for approval by this Court may be called for as a necessary step preceding the reopening of schools.

189. As detailed earlier, in Grootboom the Court referred to the reasonableness of plans and programmes in their conception and implementation but did not go so far as to require organs of state to submit implementation plans.  What the applicants impermissibly do is to conflate the activity of implementation, which the Court said must be reasonable, with a requirement that an implementation plan approved by the Court must precede implementation.  For the reasons set out earlier, we find that there is no legal obligation on the fourth respondent to devise implementation plans.

190. In Agri Eastern Cape and Others v MEC for the Department of Roads and Public Works and Others,[45] in dealing with the circumstances in which a Court may consider the granting of a structural interdict, the Court said:

“In their highly instructive and oft-quoted paper Mandatory Relief and Supervisory Jurisdiction: when is it appropriate, just and equitable 2005 SALJ 325, Roach and Budlender at 331-334 identify three sets of circumstances where a structural interdict is warranted. The first is where ‘it is necessary to secure compliance with a court order’. The second is ‘where the consequences of even a good-faith failure to comply with a court order are so serious that the court should be at pains to ensure effective compliance.’  The third is ‘where the mandatory order is so general in its terms that it is not possible to define with any precision what the government is required to do.’”

191. Also, in Mzalisi NO and Others v Ochogwu and Another,[46] the Supreme Court of Appeal had to decide whether a structural interdict was warranted and, in the course thereof, stated the following:

"By way of prelude to a discussion of this topic, it suffices to state that, generally, the grant of a structural interdict is a remedial power vesting in courts in order to retain judicial supervision after a remedy has been granted to ensure satisfactory compliance with their orders. It will not be granted willy-nilly. Ordinarily courts proceed on the assumption that parties against whom an order has been granted will ensure that such an order is scrupulously complied with. Should this not be the case the applicant would not be without a remedy.”[47]

192. On what is before us there is simply no basis to consider the grant of this relief.  There are comprehensive plans which in many instances include implementation measures that accompany the decision to re-open schools.  There is in general no requirement for the inclusion of separate implementation plans but even then, there is nothing in this application that would justify the need for such plans and so the very basis of the supervisory relief must be called into question.

193. There may of course be problems as the process unfolds with implementation and readiness, but those unknown and unpredictable problems that may occur cannot justify the need for supervisory relief.  On the contrary, the realisation that schools would not be ready to reopen by the 1 June but by the 8 June 2020 is evidence that the fourth respondent is simply not proceeding ahead regardless but that there appears to be ongoing assessment and evaluation of the situation with a view to taking informed decisions.

194. To grant this kind of relief in these circumstances and in the absence of any, let alone a proper justification for it would seriously undermine the principle of the separation of powers that serves to delicately balance the manner in which the different arms of government function in relation to each other.

195. In summary:

(a) There is no legal requirement why such plans should be submitted and approved by a Court as a pre-requirement for the State to discharge;

(b) On the facts there is no other compelling reason why such an order should be granted;

(c) An overview of the readiness plans submitted, indicate that provision has been made and adequate consideration given to the proper implementation of such plans; and

(d) No basis has been advanced for the granting of supervisory relief.

196. The relief sought must accordingly be refused.

THE SIMULTANEOUS RE-OPENING OF SCHOOLS

197. The final component of the relief sought is that the Court should direct the fourth respondent to not re-open any schools until all schools have been declared ready to open.  In support of this ground of relief, they argue that the decision to effect the staggered re-opening of schools is irrational and in addition, results in inequality based on race and/or social origin.  They say that the staggered re-opening will have the result that affluent schools, which are largely White, will be ready to re-open earlier than poorer schools that are largely Black and rurally situated.

198. There is no evidence in support of the argument that affluent schools will invariably be ready to re-open earlier that poorer schools, so the basis underpinning the relief is at the very least factually questionable.  In addition, it cannot be irrational for the re-opening of schools to occur in a staggered fashion, as the objective sought to be achieved is to link the re-opening to the state of readiness of each school.  This, in turn, is pegged to the health, safety, sanitation and other protective measures that are being put in place at each establishment.  There can be nothing irrational about this.

199. Finally, what the applicants seek in this regard is for the total exclusion of the school community from returning to school until each of the some 24 000 schools in the country is ready to re-open. In Minister of Home Affairs v Fourie,[48] the Constitutional Court warned against an approach of "levelling down" to attain "equality" as follows:

"Levelling down so as to deny access to civil marriage to all would not promote the achievement of the enjoyment of equality. Such parity of exclusion rather than of inclusion would distribute resentment evenly, instead of dissipating equally for all. The law concerned with family formation and marriage requires equal celebration, not equal marginalisation; it calls for equality of the vineyard and not equality of the graveyard."[49]

200. Under the guise of advancing equal access to education, the relief sought by the applicants would have precisely the same effect of advancing what the Court referred to as parity of exclusion.  It would simply lead to the further and unnecessary delay of the fulfilment of the right to education, with all the attendant consequences that go with it.

201. It is for these reasons that the relief sought under this head must also fail.

COSTS

202. The applicants sought punitive costs in the event of them being successful.  They justified this by reference to what they describe as various unwarranted attacks made in the papers on the motive of the applicants in bringing these proceedings.  Those remarks suggest that the applicants were abusing a serious matter such as Covid-19 for purposes of propaganda, were intent on scoring cheap political points and in the process, posturing to gain popular support.  The applicants deny the veracity of these remarks.

203. The first to third respondents sought costs in the event that the application was dismissed.  In support of this they argued that the applicants failed to raise a valid constitutional issue, impermissibly sought to declare an entire chapter in the Regulations invalid and failed to issue a Rule 16A notice.

204. The fourth respondent also sought costs, but on a punitive scale, arguing that the application lacked merit from the outset and was frivolous and vexatious.  She also complained that the applicants impermissibly attacked the character and the integrity of the state respondents. The fourth respondent contended that these factors justified both a departure from the Biowatch principle as well as the imposition of a punitive costs order.

205. In Limpopo Legal Solutions v Eskom Holdings Soc Limited,[50] the Constitutional Court clarified and reaffirmed the principles on costs orders:

“When courts are called upon to exercise discretion on costs, there are two routes, depending on the case. The first applies in matters that are not constitutional litigation between a private party and the state. The general rule there is that, subject to exceptions not now material, the successful party should have costs. The second applies in constitutional litigation between a private party and the state – and the general rule there is that a private party who is substantially successful should have its costs paid by the state — but no costs order should be made if the state wins. The second route like the first is subject to exceptions.

Biowatch fundamentally clarified the nature of costs in constitutional litigation. The general rule is not to award costs against unsuccessful litigants when they are litigating against State parties and the matter is of genuine constitutional import. This Court recently explained the reason — to avert the chilling effects of an adverse costs order: In both Biowatch and Helen Suzman Foundation this Court emphasised that judicial officers should caution themselves against discouraging those trying to vindicate their constitutional rights by the risk of adverse costs orders if they lose on the merits. Particularly, those seeking to ventilate important constitutional principles should not be discouraged by the risk of having to pay the costs of their state adversaries merely because the court holds adversely to them.

But Biowatch drew a limit. The line was this — applications that are "frivolous or vexatious, or in any other way manifestly inappropriate get no shelter from adverse costs – Biowatch does not allow risk-free constitutional litigation. The worthiness of an applicant's cause "will not immunise if against an adverse costs award."

206. In Lawyers for Human Rights,[51] the Constitutional Court had to consider an adverse costs order against a party litigating to secure constitutional rights. It gave content to the Biowatch[52] exceptions. The Court held that “vexatious” litigation was litigation that was:

"… frivolous, improper, instituted without sufficient ground, to serve solely as an annoyance to the defendant'. And a frivolous complaint? That is one with no serious purpose or value. Vexatious litigation is initiated without probable cause by one who is not acting in good faith and is doing so for the purpose of annoying or embarrassing an opponent. Legal action that is not likely to lead to any procedural result is vexatious."[53]

207. When we have regard to these principles, we take the view that while the applicants were ultimately unsuccessful, we would not characterise the case brought as being frivolous and vexatious or as one that would fall outside of the principle enunciated in Biowatch - that those seeking to vindicate important constitutional rights should not be visited with an adverse costs order in the event they are not successful.

208. We accordingly do not intend to make any order as to costs.

209. However, the stance adopted by some of the parties on the papers as well as the manner in which some of the issues were advanced in argument require some further consideration and we deal with this hereunder.

ADVERSARIAL LITIGATION

210. Our system of adversarial litigation occurs within a society in which freedom of expression is a fundamental part of the constitutional order.  The consequence is often what is described as “no holds barred litigation” which for some may translate to mean that there should be no boundaries to the manner in which parties litigate.  This cannot be so and cannot be consistent with the values of human dignity and respect that the Constitution seeks to advance.

211. In this application, there were many examples of such boundless and unjustified attacks launched.  They ranged from accusations of racism, to those of wanton disregard.  The use of phrases, such as “sending children into the fire of Covid-19” were used quite liberally.  On the other hand, accusations of political opportunism, of popular posturing, and of abusing a health crisis to advance political points were also used.  In the end we could find no justifications for such remarks and we simply think it necessary and wise to caution litigants that even in an adversarial system that must countenance frank and robust litigation, there must be room for recognising, at the very least, the dignity and worth of all those involved.

ORDER

212. In the result the following order is made:

(a) The application is dismissed.

(b) No order is made as to costs.

 

 

________________________

D Mlambo

Judge President of the Gauteng Division of the High Court

 

 

_________________________

N Kollapen

Judge of the Gauteng Division of the High Court

 

_________________________

R Keightley

Judge of the Gauteng Division of the High Court

 

Date of hearing:                               18 June 2020

Date of judgment:                            01 July 2020

 

Appearances:

Counsel for the Applicants: D C Mpofu SC

K Pillay

M Marango

Instructed by:

Mabuza Attorneys

Ref: Mr ET Mabuza/Ms R Baloyi

C/O Nkome Inc Attorneys

Ref: Mr A Nkome

Counsel for the first to third Respondents: K Pillay SC

M Lekoane

M Dafel

Counsel for the fourth Respondent: M M Oosthuizen SC

I Hlalethoa

Instructed by:

The State Attorney, Pretoria

Attorneys for the Respondents

F Mokgale

I Chowe

T Ramoshaba

Ref: 1742/2020/Z53

Counsel for the Amicus Curiae: A T Lamey

C van Schalkwyk

Instructed by:

Hunter Spies Inc.

Ref:  DJ Eloff/MAT3228

 

^[1] Hoffmann v South African Airways 2001 (1) SA 1 (CC) at para 63.

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