Labour and Employment Law

COVID-19: The changing times and the constitutionality of the regulations

Posted 08 June 2020

Kem Tumba Diong


On 24 May 2020, the Government announced the easing of the lockdown alert level for South Africa will be lowered from Level 4 to Level 3 with effect from 1 June 2020. Whilst it has been reiterated by the President that the results of the more stringent lockdown at Level 5 had been effective in lowering the risk of transmission of Covid-19, the effects on the economy had become so apparent that this relaxation of the lockdown rules came as no surprise to many.

With the Level 4 regulations permitting many businesses to phase in the return of employees to work, Level 3 echoed similar provisions by cautioning employers to minimise the number of employees in the workplace through rotation, staggered working hours, shift systems, remote working arrangements and similar measures. Although businesses were permitted to resume, the Government emphasised any return to work or social activities must be done in accordance with health and safety protocols and social distancing must be maintained.

The Department of Employment and Labour had previously issued a directive in respect of the COVID-19 Occupational Health and Safety measures in workplaces (“C19 OHS”) in order to ensure that businesses are consistent with the overall national strategies and policies to minimise the spread of Covid-19. The aim of C19 OHS, read together with the Occupational Health and Safety Act, 85 of 1993 (“OHS”) is to assist employers to put measures in place to protect and maintain the health and safety of their workers and any other persons who enter the premises of the employer and/or are exposed to the employer’s working activities.

Whilst South Africans, including businesses and employees alike geared into a more flexible and collaborative set of arrangements in Level 3, just two days into the alert level, the Gauteng High Court declared the lockdown regulations relating to Level 3 and Level 4 as invalid and unconstitutional.

High Court judgment

South Africans will recall that due to the Covid-19 pandemic, President Cyril Ramaphosa declared a State of Disaster and the Government began exercising its power and authority in terms of the provisions of the Disaster Management Act 57 of 2002.

Over the past few months and since the implementation of the nationwide lockdown at alert Level 5, a number of regulations and directives were issued by the Government. Although generally, South Africans abided by the regulations in order to (as per Governments directives), guard against and limit the spread of Covid-19, some expressed their discontent about the lockdown regulations. The President however, reiterated that the decisions taken by the Government had been made after careful deliberations of the needs of South Africans, whilst also striking a balance in an attempt to revive the  economy.

In a recently heard matter, the Applicants, being Mr. de Beer, Liberty Fighters Network and the Hola Bon Renaissance Foundation (as amicus curiae, or “friend of the court”) launched an urgent application in the High Court, Gauteng Division to challenge the validity of the declaration of a National State of Disaster and the promulgation of Level 3 and 4 regulations by the respondent, namely the Minister of Cooperative Government and Traditional Affairs (”Minister”).

In its ruling, the court specifically gauged the rationality test of whether the exercise of a power to make a specific regulation related to the purpose for which the power was conferred. It was highlighted that “where a measure is not rationally connected to a permissible objective, then that lack of rationality would result in such a measure not constituting a permissible limitation of a constitutional right in the context of section 36 of the Constitution”.

The Judgment emphasized that the regulations did not pass the rationality test and have infringed on the rights to human dignity, equality and freedom, as enshrined in the Bill of Rights contained in the Constitution and are not justifiable in an open and democratic society.

The court directed the Minister, in consultation with other ministers to amend, review, and republish the regulations so as to not infringe on constitutional rights.

The court ordered that the declaration of the invalidity of the regulations has been suspended for 14 days, which means that the current Level 3 regulations will remain in effect.


Whilst this Judgment may be perceived as a win for some, it will be an interesting development to see how Government will react.

If the Government does amend the regulations, cognizant of the Judgment, it is more likely that the regulations will provide for more further relaxation measures as opposed to implementing stringent measures.

There is no doubt that the Judgment has however, left many South Africans with uncertainty on what further possible measures may be implemented in future.

During these trying times, the reality is that the Covid-19 cases are still continuing to increase on a daily basis and are immensely affecting business operations.

Businesses and employees alike must therefore continually ensure that they comply with the health and safety regulations in place in order to reduce the risk of transmission of Covid-19 within the workplace and ensure a clean and conducive environment for workers.

Should you require any assistance with Covid-19 advice or drafting of Return-To-Work policies, kindly contact us.