COVID in South Africa shows the limits of using courts to fight political battles

The COVID-19 pandemic has changed many aspects of our daily lives. Some of these changes are immediately visible in the everyday wearing of face masks, in the bottles of hand sanitiser found on shop counters, and in the careful spacing of long queues. Others, though, are less obvious. They take place in the structures of the legal system that shapes our relationships to one another and to the state.

In the recent past, as I’ve argued in my book, South Africa’s Insurgent Citizens the post-apartheid constitution’s emphasis on the need for state action to be both rational (in the legal sense) and grounded in the fundamentals of the Bill of Rights, has meant that the law and legal activism have become political tools. These tools have often been used by poor communities and civil society bodies to pursue their goals. Attempts such as these to pursue political ends through legal means have been described as “lawfare”, and have become common in South Africa.

In the current pandemic, this history of “lawfare” has inspired a new series of legal challenges to the new legal rules and structures that govern the country.

The mechanism through which these new rules are implemented is the Disaster Management Act of 2002. This Act enables the President and the executive to declare a national state of disaster and – so long as the disaster persists – to bypass some of the legal constraints ordinarily placed on the exercise of government powers.

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The Act gives the President the power to govern by making regulations that then have legal and binding force on the nation. The President can do so without following the slow processes of passing new legislation.

On 15 March 2020, following the President’s lead, the Minister of Cooperative Government and Traditional Affairs declared such a state of disaster and, shortly afterwards, published the first of several sets of regulations. These regulations established the framework within which South Africa has since been governed.

They were almost immediately challenged in the country’s courts.

These challenges took several forms. Some of the first cases disputed the legality of the initial declaration, while others questioned specific aspects of the new regulations – such as the decision to ban the sale of alcohol, or the sale of tobacco.

I wrote about these challenges in a recent paper in the South African Journal on Human Rights, and considered what the successes and failures of these cases might mean for civil society politics during the COVID-19 pandemic. In essence, I argued that the relative failure of these cases has shown the limits of “lawfare” as a political strategy in the context of a widely-recognised disaster. In a time of uncertainty, the courts are more likely to give the executive branch of the state more discretion, reducing the possibility of public oversight of its actions.

COVID-19 response and lawfare

In the first six months after the declaration of a state of disaster, a wide range of civil society organisations and political parties challenged the legality of the declaration itself, of the regulations that governed trade, and human movement through curfews and restrictions on national travel.

Although some of these challenges achieved limited success in the courts, the majority failed. The courts proved themselves reluctant to interfere in the exercise of the executive’s power to promulgate and enforce regulations in terms of the Act. In doing so, the courts tacitly accepted that standards of judicial oversight that mark the separation of powers in ordinary times might not be appropriate during the exceptional circumstances of a state of disaster.

It is tempting to explain at least part of this trend by reference to the inept way in which some of the early challenges were argued. The very first case, for example, argued that the state of disaster should not have been declared because

COVID-19 … cannot be harmful to Africans.

But comparable statements were also made in another case – De Beer v Minister of Cooperative Affairs that was partially successful. In this case, the “Liberty Fighters Network”, a relatively-unknown civil society organisation, argued that the President should not have declared a state of disaster to respond to COVID-19 because a number of other serious diseases were already endemic in South Africa.

The successes and failures of this case – and other cases – revolved around the standard of legal rationality that could be required of the government. The applicants were successful because the judge held that each of the specific regulations had to be justified as ‘rational’ – and that he could therefore strike down isolated aspects of the regulations piecemeal.

But in the majority of the other cases the executive was held to a different standard: most other judges were reluctant to pick apart the threads of the regulations to determine the individual rationality of each one. Instead, they held that the regulations ought to be examined as a whole. If the entire scheme was rationally connected to the purpose of containing and managing the COVID-19 disaster, then the regulations would withstand scrutiny as a whole.

The limits of lawfare

Although the De Beer judgment received a great deal of press attention at the time, the standard it applied did not persist. It is the other standard – of overall rather than specific rationality – that went on the shape the jurisprudence. And it is the regular use of this standard that best explains the failures of pandemic “lawfare”.

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It is obvious that it is much harder to argue that the entire fabric of the regulations is wholly irrational than it is to argue that a specific thread within that fabric – the decision to ban the sale of alcohol, for example – should not have been taken.

It is thus unsurprising that the prospects of “lawfare” by civil society organisations during the first six months of the disaster were bleak. And in the almost 18 months since, little has happened to change that assessment.

Indeed, the willingness of the executive to pre-empt criticism by amending the regulations has arguably strengthened its position. The overall rationality of the links between the regulations, their amendment, and the changing events of the pandemic seems clear – even if a court might be persuaded to doubt the logic of a specific ban or requirement. The regulations are almost immune to challenge.

Overall, this has meant a reduction in the effectiveness of civil society politics. Even as many of the physical spaces in which public gatherings and activism could take place were being closed, the grounds on which organisations could challenge the legal regimes under which South Africa is governed were being steadily narrowed.

I do not know how this will affect the ways in which politics will continue to develop once the pandemic ends. But I think it is fair to suggest that the past two years have shown the limits of “lawfare” as a political tool in this context.