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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION PRETORIA

 

(1)    REPORTABLE: YES

(2)    OF INTEREST TO OTHERS JUDGES: YES

(3)    REVISED.

23 DECEMBER 2020

 

CASE NO. 66506/2020

In the matter between:

KOUGA LOCAL MUNICIPALITY                                                              Applicant

and

THE MINISTER OF CO-OPERATIVE GOVERNANCE

AND TRADITIONAL AFFAIRS                                                               Respondent

CASE NO. 66191/2020

In the matter between:

GREAT BRAK RIVER BUSINESS FORUM                                First Applicant

LOUIS COOK                                                                                  Second Applicant

and

THE MINISTER OF CO-OPERATIVE GOVERNANCE

AND TRADITIONAL AFFAIRS                                                   First Respondent

MINISTER OF HEALTH                                                               Second Respondent

PREMIER OF THE WESTERN CAPE                                         Third Respondent

CASE NO. 66683/2020

In the matter between:

BUFFELSBAAI HOME OWNERS ASSOCIATION                      First Applicant

THE PLETTENBERG BAY TOURIST ASSOCIATION         Second Applicant

and

THE MINISTER OF CO-OPERATIVE GOVERNANCE

AND TRADITIONAL AFFAIRS                                                        First Respondent

PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA            Second Respondent

JUDGMENT

FABRICIUS J

[1] On 22 December 2020 1 heard 3 urgent applications involving the closure of the beaches in the Eastern Cape between 16 December 2020 and 03 January 2021 , which period can be regarded as the peak holiday time in South Africa at least in Summer.

[2] The 3 matters use the Buffelsbaai Home Owners Association as First Applicant and the Plettenberg Bay Tourist Association as the Second Applicant vs the Minister of Cooperative Governance and Traditional Affairs and the President of the Republic of South Africa under Case Number 66683/2020; the Great Brak River Business Forum as First Applicant and Mr L Cook as Second Applicant vs The Minister of Cooperative Governance and Traditional Affairs, The Minister of Health and the premier of the Western Cape under Case Number 66191/2020 and lastly Kouga Local Municipality vs Minister of Cooperative Governance and Traditional Affairs under case number 66506/2020.

[3] For the sake of convenience I heard the Kouga case first. The arguments by counsel in all 3 matters largely over-lapped as far the applicable legal principles were concerned, though with 1 exception. In the Buffelsbaai case Mr Bofilatos SC on behalf of the Applicants sought to rely on various provisions of PAJA. The Minister had made the particular Regulation sought to be impugned under the Disaster Management Act on 15 December 2020 and my view was that this was an executive act not subject to PAJA provisions. This had in any event also been held by the Full Court of this division in the Fair Trade Independent Tabaco Act v The President 2020 (3) SA 513 GP at par 15. When Regulations are sought to be set aside it will be decided on the basis of legality of executive actions. The question in all 3 cases was in essence that the particular decision taken to close the Garden Route beaches or the Eastern Cape beaches was irrational. There is no debate about the fact that there must be a rational connection between the decision taken and the result sought to be achieved thereby. The principle of legality thus comes to the fore.

[4]         In the Buffelsbaai case the Applicant sought a declaratory order that Regulation 69 (12) (b) as published in Government Gazette 43997 on 15 December 2020 be declared unconstitutional and unlawful.

In the Kouga case the Applicants initially sought an interim interdict to prevent the implementation of the relevant Regulation pending a review at a later stage. During argument it was conceded that such relief would in effect be final in nature on the basis that any review would in all likelihood be decided months after the holiday period. Mr Cilliers SC therefore had to concede that he was seeking a final interdict.

This has its own consequences it has been held in National Treasury and Others v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC) at par 44 — 47 that an applicant in such a case must satisfy a higher threshold and that a final interdict against executive action should only be granted in the clearest of cases. It is also noteworthy that the Regulation concerning this Applicant's beach areas has already been implemented. Its beaches have been closed. An interdict seeks to prevent future conduct. In addition this Applicant seeks to carve out an exception, as it was put, in respect of its own municipality while the rest of the Eastern Cape will still be subject to the impugned Regulation. No case has been made out for such an exception: the result would also be that there would be no restrictions in respect of the 70 kilometres of coast line under Kouga's administration, whilst there are restrictions for KwaZulu-Natal and Western Cape beaches. These are not challenged in these proceedings. Another result would be, were the final interdict to be granted, and knowing human nature all too well, that the public would flock to these areas en mass and thereby most likely increase the spread of the new wave of infections substantially.

[5]         In the Great Brak Business Forum case Applicant initially sought an order that would declare Regulation 69 (12) (a), (b), (c) and (d) unconstitutional and unlawful. Regulation 69 (12) (a) deals with the Eastern Cape, 69 (12) (b) with the Garden Route, 69 (12) (c) with Natal and 69 (12) (d) with the Northern Cape and the Western Cape, excluding the Garden Route. During argument Applicant's counsel concedes that he could only have locus standi in respect of Regulation 69 (12) (b) namely; the Garden Route.

[6]         As I have said the proceedings are urgent. They affect lives and livelihoods in all probability and infringe rights safeguarded by the Bill of Rights. An urgent decision with reasons is therefore called for. It must therefore be appreciated that I will deal with the main aspects only and cannot delve into each and every argument presented to me. The crux of the case remains the rationality of the relevant Regulation or decision. KwaZulu-Natal has been affected by the closure of the beaches on certain specified days over the Christmas and New Year period only. In the Western Cape time restrictions were imposed. Beaches would only be accessible between 09:00 am and 18:00 pm. This was challenged by the DA on Monday and on Tuesday the court held that the application to open the Garden Route was dismissed by the opening time was changed to 06:00 am and closing time to 19:00 pm I have not been provided with that judgment. Beaches in the Western and Northern Cape were otherwise not affected. This differentiation was said to be unfair, unreasonable and irrational.

[7]         Of concern to me is also that many "facts" put before me are largely of a hearsay nature and thus inadmissible. I appreciate that Applicants had little opportunity to obtain expert advice, but even that does not allow me to admit otherwise inadmissible hear-say evidence and to have my judgment thereon. On the other hand the Government was guided by expert medical advice and opinions. There is no doubt that the state has a constitutional obligation to protect the health of its citizens or inhabitants. The pandemic must be halted or its spread at least limited by all lawful and rational means. That is its role and it is only in exceptional circumstances that a Court will not show deference to decisions made based on objective facts, i.e. the sudden spike in infections as a result of the virus probably having mutated here and elsewhere in Europe and based on views of experts of international renown. Hospitals are already been overwhelmed, elective surgery has been cancelled and even younger people have now been found to be spreaders of the virus. The Government and its experts do not have all the answers, in fact there is very little certainty about a number of facts, such as why the new wave has occurred so suddenly and why the new strain is more infectious. Experts all over the world are baffled by a number of aspects and it would be unwise in the extreme to ignore the objective facts on the ground. It is true that a balance between conflicting interests must be found i.e. between health and economic consequence. This is not an easy task, but I have considered all the consequences.

[8]         I have considered the following factors amongst the many debated:

8.1        the exercise of public power must be rational. The circumstances under which the exercise of public power may be regarded as irrational are extremely narrow. A rationality review is concerned with the evaluation of a relationship between means and ends, namely whether the means selected are rationally related to the objectives sought to be achieved. The aim of the evaluation is not to determine whether some means will achieve the purpose better, only where the selected one could also rationally achieve the same end. In Albutt v Centre for the Study of Violence and Reconciliation and Others 2010 (3) SA 293 (CC) ("Albutt') at par 51 the Constitutional Court put it as follows:

 the Executive has a wide discretion in selecting the means to achieve its Constitutionally permissible objectives. Courts may not inteffere with the means selected simply because they do not like them or because there are other more appropriate means that could have been selected. The enquiry is objective. '

8.2          when the decision relates to a technical matter or a medical one such as in these cases a Court must chair a matter of deference when assessing whether a decision is irrational. See Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) at par 48.

8.3          this approach must apply in the present cases where the government seeks to combat a pandemic and minimise its effects and where a new wave of infections has seen a dramatic and disturbing increase in the curve.

8.4          the government must ensure that the public health system and hospitals and clinics can cope.

8.5          the strain on public health resources can and should be reduced by limiting movement of persons during the festive season during which, for some strange reason, persons seem to lack perspective and responsibility on a daily basis.

8.6           the risk of contracting and transmitting the virus must be reduced.

8.7          I agree that these purposes are legitimate, urgent and necessary.

8.8         the restrictions imposed are only for a limited period albeit this period is critical for some businesses

8.9          3 Hotspots have been identified in the Eastern Cape, namely, Nelson Mandela Bay, Baartman and Garden Route areas. The Government pointed to a 50% increase in the spike on the basis of medical evidence which was not disputed in any replying affidavit by expert opinions to the contrary.

8.10         the Premier of the Eastern Cape wrote to the First Respondent recommending the closure of the Eastern Cape Beaches, after he had consulted with all municipal mayors. Kouga supported this decision, although this is now denied. On the basis of the principle expanded in the well-known PlasconEvans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) decision , I must accept the version of the Respondents on this point.

8.11       premiers of other provinces had different preferences as I have said and it was also debated whether or not each municipality should make its own decision.

8.12        visitors to beaches are usually not alone. They are mainly visited by families and groups sitting together. Communal transport is mainly used. Foot traffic in surrounding areas increases. Human inter-action increases. Masks are often not worn. Police officials have seen a sharp rise in infections amongst their members. I agree therefore that a justifiable distinction can be made between hotspot areas as defined in the regulations and other areas less affected.

8.13        Although the Applicants referred in their founding affidavits to the necessity for less restrictive means to be employed none of substance were suggested so that they could be sensibly debated in their affidavits.

[9]         Professor Karim of the Medical Advisory Council, a renowned expert provided the government with advice and alternatives. The premiers of the provinces debated these and stated their preferences on the basis of the situation on the ground. Having regard to the mentioned declared Hotspots, the Premier of the Eastern Cape opted for total closure of the beaches. The government accepted this. In my view this is not an irrational decision. In my view the decision was reasonably necessary for purposes of Section 27 (3) of the Disaster Management Act. It need not be absolutely necessary. The government has the Constitutional duty in addition, in terms of Section 7 (2) of the Constitution read with Section 27 (2) to achieve the right of access to health care services and to take reasonable measures in this regard it cannot do so if hospitals are overwhelmed by the second wave now amongst us and about which too little is known for forming dogmatic views. Scientific knowledge is still evolving worldwide. Infection rates have risen daily for the last few weeks. The government is therefore entitled to adopt a cautious approach. I am satisfied that in the present cases the government acted on the basis of representations made and considered, including expert medical opinions. Representations from the hospitality industry were also considered —that is the reason why the said regulations were again amended on 17 December 2020 to allow for increased capacity in respect of hotels, guest houses and other holiday facilities, wine outlets were considered and accommodated. I cannot find that in law the government was obliged to conduct further formal consultative processes. I also do not agree that no one knows what a "beach" is as it is not defined, not even in the Constitution which deals with municipal powers. In my view it is that stretch between the low and high watermark although sand may extend beyond that. I therefore do not agree that there is an unlawful vagueness concerning this aspect. Everyone knows what is meant by a beach and if the SA police services do not, affected persons should take the necessary steps. The regulation does not refer to estuaries or lagoons either.

[10]     In light of the above considerations and which as I have said, I am obliged to consider them urgently. I am satisfied that any infringement of rights is justifiable in terms of Section 36 of the constitution, and that the relevant decision is not irrational or unlawful.

The result is therefore the following:

1.       All three applications are dismissed;

2.       No order as to costs is made. The applications concerned themselves with valid constitutional considerations.

Lastly I must mention that I refused the Liberty Fighters Network application which was brought by Mr De Beer in his own name for admission as amicus curiae to address me and file written argument. Having read his founding affidavit I found that any such argument would be irrelevant for present purposes, and would deal with aspects which will in due course be considered by the Supreme Court of Appeal. His intervention would also have led to an unjustifiable delay.

H FABRICIUS

JUDGE OF THE HIGH COURT OF SOUTH AFRICA,

GAUTENG DIVISION

DATE OF HEARING	• 22 DECEMBER 2020
DATE OF JUDGMENT	• 23 DECEMBER 2020

APPEARANCES:

Kouga Local Municipality v The Minister of Cooperative Governance and Traditional Affairs - Case Number 66506/2020:

For The Applicants	Advocate Cilliers
For The Respondent	Advocate Jamie SC, Advocate Nacerodien and Advocate Tshomo

Great Brak Business Forum and Two Others v The Minister Of Cooperative Governance And Traditional Affairs And Two Others — Case Number 66191/2020:

For The ApplicantsAdvocate Anthonie P Jansen Van Vuuren

For The Respondent :Advocate Jamie SC, Advocate Nacerodien and

Advocate Tshomo

Buffelsbaai Home Owners Association and 2 Others v The Minister Of Cooperative Governance And Traditional Affairs And The President Of The Republic Of South Africa - Case number 366683/2020:

For The Applicants	Advocate Bofilatos
For The First Respondent	Advocate Jamie SC, Advocate Nacerodien and

Advocate Tshomo

For The Second Respondent Advocate Arendse

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