Davis Judgement – To Claim or Not to Claim for Damages – the Question on everyone’s lips

  1. On the 2nd of June, 2020, Judge Norman Davis afforded the Minister of Cooperation and Traditional Affairs to review, amend and republish the lockdown regulations (save for regulations 36, 38, 39(2)(d) and (e) and 41) after declaring the remainder of the regulations published, unconstitutional and invalid.
  2. A Judge as experienced as Judge Davis, when tasked with considering an intricate matter such as this, would have accounted for all of the evidence.
  3. In reading his judgment, we note the following:

3.1 It is clear that the Government treated this matter, and the Judge for that matter, with much disrespect and little to no sense of urgency.

3.2 The Minister who was supposed to defend the rationality and constitutionality was at a complete loss to defend her very own actions.

3.3 Instead of rationalising the regulations, the Minister simply dumped the responsibility on the Director General, which action was found upon by the Judge.

3.4 The Judge commented and indicated that the regulations are riddled with deficiencies, which deficiencies need to be addressed by the Minister in the form of reviewing and amending the regulations.

3.5 The Judge found that the regulations infringed South African Citizens’ rights as set out in the bill of rights and such infringement could not be justifiable.

3.6 What is further clear is that there was no evidence tendered by Dr Salim Abdool Karim, who is the scientist who leads the South African Covid-19 advisory team.

3.7 The reasoning by Judge Davis was that many of the regulations which infringed upon South African Citizens’ rights, were not rationally linked to the purpose it sought to achieve (the regulations were not an end to the means).

3.8 Judge Davis cast a wide net insofar as declaring the majority of the regulations invalid however, was reluctant to deal with regulations individually.

It is of great concern that the Minister dealt with a matter, as serious as this one, with such lack of urgency and without due consideration to the continued infringements of our rights as set out in the Bill of Rights.
We are aware that many questions arise as to whether South African citizens can institute a claim for damages as a result of the regulations which were declared invalid and unconstitutional. We however believe that the Minister should be given an opportunity, as ordered by Judge Davis, to revisit the regulations before litigation for such damages is embarked upon.

In considering such a damages claim, one would need to consider the amended regulations (still to be published by the Minister) and whether such regulations would be considered as a concession (on the part of the Minister) that the regulations were in fact irrational, invalid and unconstitutional and as a result damages were suffered. Of course, citizens who can establish such damages, would need to be able to quantify such damages and each matter placed before Court would need to be decided on a case to case basis.

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