State of disaster legal challenges: Covid vs load-shedding

South Africa has declared a second national state of disaster in less than three years.

The first was the Covid disaster declaration in March 2020. This allowed the government to pass sweeping lockdown regulations that encroached on human rights — directly and indirectly — including the rights to dignity, privacy, freedom and security of the person and the right to choose and practise a trade or occupation freely.

More recently it issued another disaster declaration in response to the country’s severe electricity supply constraints. South Africa is experiencing the worst power cuts on record as the national utility, Eskom, implements longer and more frequent scheduled blackouts, referred to as load-shedding. The outages are having severe social, economic and ecological effects. The declaration aims to address the effects of the power outages and to avert the possible progression to a “total blackout”.

These load-shedding regulations are not likely to encroach on human rights to the same extent as the Covid measures did, as they do not restrict movement or trade.

But they come at a time when memory of the overreach of the lockdown regulations is still fresh. Citizens are also enraged at the government’s failure to deal with a 15-year-old electricity crisis and worsening corruption which contributed to it.

The regulations in response to the pandemic were challenged in a number of court cases. Two (involving three decisions) challenged the prohibition of the sale of tobacco products. One case was brought by the Fair-Trade Independent Tobacco Association. It was heard in the Pretoria high court. Another was brought by British American Tobacco (BAT). This case was heard first in the Western Cape High Court and subsequently in the Supreme Court of Appeal (SCA).

The minister of co-operative governance & traditional affairs was a respondent in both cases.

All the cases engaged with arguments relating to the principle of legality, which underlies South Africa’s constitutional democracy. (The rule of law guards against the arbitrary exercise of state power, because it requires a rational relationship between the exercise of government power and the purpose for which such power is exercised (the “rational connection” test).

The way in which the courts dealt with legality in the Covid tobacco cases will bind other courts in their deliberations on the same or similar issues. This is in line with the principle of judicial precedent.

At least three organisations have announced that they will challenge the latest disaster declaration in court.

Based on the Covid tobacco cases, the courts considering challenges to the load-shedding disaster will need to decide whether there is a “necessary and objective connection” between the steps government has taken and what it aims to achieve. This sets a high standard of proof for the government.

The arguments

But a legal challenge to the load-shedding declaration or regulations is not restricted to an argument based on legality. The organisations challenging them could argue, for example, that the definition of “disaster” in the Disaster Management Act does not extend to a government-caused load-shedding crisis. They could argue that other legislation should be used to deal with the electricity crisis.

However, as argued elsewhere, these arguments may not succeed.

Organisations may also rely on infringement of human rights as a cause of action. But this is unlikely to hold water as the measures proposed in the load-shedding declarations are not restrictive in the sense that the lockdown regulations were.

Notwithstanding these other possible approaches, a cause of action based on legality is likely to feature strongly in the forthcoming cases. Courts will be asked to determine the rational connection between the declaration and its regulations and the overarching legitimate government purpose (alleviating, for example, the effects of the power cuts).

There could, however, be different interpretations of the quality of rationality required, particularly if the minister relies heavily on section 27(2)(n) of the Disaster Management Act. This section allows the minister to make regulations or issue directions concerning “other steps that may be necessary to prevent an escalation of the disaster”.

Because load-shedding is not a disaster in the ordinary sense, this particular power arguably underlies many of the measures in the new regulations.

In the Covid tobacco cases, the courts considered the quality of rationality required for the exercise of powers in section 27.

The Fair Trade court was sympathetic towards the executive. Its judgment set a low bar for the minister of co-operative governance & traditional affairs to prove that the decision to ban the sale of tobacco products was rational. It held that to prove the rational relationship between tobacco prohibition and the government purpose (to protect human life and health and reduce potential strain on the health-care system), the minister needed only to show a “sufficient rational basis” for the action.

The evidence on which the minister relied did not have to cogently and conclusively establish a direct link between tobacco prohibition and the stated government purpose.

In taking this stance, the court in the Fair Trade case opted for a broad interpretation of the word “necessary” in section 27(2)(n).

The courts in the BAT cases took a different view and set the bar much higher. The Western Cape High Court disagreed with the Fair Trade court, and held that the Constitutional Court’s approach in Pheko & Others v Ekurhuleni Metropolitan Municipality applied. In the Pheko case (which dealt with the declaration of a local, and not a national, disaster), the Constitutional Court held that the use of “necessary” in the similarly worded section 55 of the Disaster Management Act had to be given a narrow construction.

In the BAT case, the high court held that the minister had to show that the regulation was necessary, and not merely sufficiently rational. Courts also needed to assess this evidence objectively, not on the basis of whether the minister subjectively believed a measure was necessary.

Using this test, the court declared the tobacco prohibition invalid.

The SCA confirmed the stance of the Western Cape High Court, and thus overruled the approach in Fair Trade.

As court challenges to the load-shedding disaster declaration and its regulations mount, parties should take note that the higher bar of a necessary and objective connection set out in Pheko and the BAT cases applies. Challengers will have to prove that there is no necessary and objective connection between government’s action and its purpose, even if the minister thinks there is. The legality of the load-shedding declaration and its implementing regulations will stand or fall on the basis of this test.

* Tracy-Lynn Field is professor of environmental and sustainability Law at Wits University

* This article first appeared at The Conversation Africa