Judicial Overreach? – Unconstitutionality of State of Disaster Regulations per Judge Norman Davis in the De Beer matter
There is a widely held perception that many of the Regulations enacted by the Government in terms of the Disaster Management Act are not based on rational considerations relating to curbing the spread of COVID-19 and saving lives while preserving livelihood. However, while one may share the sentiments in this regard as expressed by Judge Davis, the judgment probably constitute a disturbing example of judicial overreach by a single judge not equipped by the parties with a sufficient record setting out the exact grounds on which the decision of the executive branch of government was based.
To simply substitute the opinion of the judge for that of the government in making a sweeping finding that “the Regulations promulgated…are declared unconstitutional and invalid” is surely not pure jurisprudence. It is simply not possible to know which Regulations are found to be compliant with the law and which are not, in terms of the order of the judge, and therefore will make it impossible for the Minister and the Executive to comply with the order.
The position would have been different had specific Regulations been targeted by the applicants and properly reviewed by the judge on consideration of the full record of facts and motivations leading the Minister to promulgate such Regulations.
An appeal by the Minister will therefore most probably be successful.
Having said that, the situation bringing about the judicial overreach, was brought about by the executive branch of government recklessly encroaching on the rights of the individual citizen in terms of the Bill of Rights without apparent rational basis or at least without such alleged rationality being properly communicated to the public.