‘Vague’ regulations may be exploited

While the current lockdown will only be effective if we embrace the spirit of the recently-promulgated regulations and avoid leaving our houses unless it is absolutely necessary, in some cases these regulations may have to be augmented to clarify matters and to ensure their effective enforcement. Constitutional law expert Professor Pierre de Vos notes in Affordable Medicines Trust and Others v Minister of Health of RSA and Another, the Constitutional Court held that regulations could be declared invalid if they are so vague that it is difficult to determine what is required by them. In his summary of some of the ‘vague’ regulations on his Constitutionally Speaking blog, De Vos accepts most of the lockdown regulations provide ‘reasonable certainty’ about what is permitted and what not. However, others need clarification:

* You may not leave your house unless it is absolutely necessary, or: a) if it is ‘strictly for the purpose of performing an essential service’; b) to obtain an essential good or service; c) to seek emergency, life-saving, or chronic medical attention; d) to collect a social grant; or e) to attend a funeral of less than 50 people. De Vos notes that according to the regulations, taxi and Uber drivers do not perform an essential service when they transport ordinary citizens to the shop to buy food. ‘This must be a mistake as the regulations allow the transportation of individuals to the shop to buy food and to the chemist to buy medicine. It is irrational to prohibit a taxi driver from leaving her house to transport ordinary citizens to the shop to buy food, but then to permit them to do so elsewhere in the regulations.’ De Vos says a bit more clarity is required to provide reasonable certainty about which goods are essential and which not. Furthermore, the regulations do not define what would constitute a medical ‘emergency’.

* While regulation 11C prohibits all commuter transport services from operating, exceptions are made to transport individuals who work in essential services to their places of work. It is permitted for taxis, buses and Ubers to transport ordinary people to the shops to buy essential goods, to the doctor for emergency, life-saving and chronic medical attention, and to pay points for social grants. De Vos notes as the regulations decree that taxi ranks and bus depots are closed to the public, it is unclear where commuters would be allowed to catch the taxis and the buses, which will operate between 5am to 9am in the mornings and again from 4pm to 8pm in the evenings. ‘As many shops only open at 8am or later and close at 5pm or 6pm, it is not going to be easy for people depending on public transport to do essential shopping.’

De Vos concludes that there are some gaps in the regulations and that some of them are vulnerable to legal challenge on the ground of vagueness. ‘A more immediate concern is that the vagueness of the regulations may present enforcement problems.’ He says there is a danger that members of the SAPS will enforce them in ‘an arbitrary and overzealous manner’, and that ‘unscrupulous and corrupt’ SAPS members may ‘invent’ rules that they will use to extract bribes from ‘unsuspecting’ members of the public. ‘Furthermore, there is a danger that some members of the public will try to exploit uncertainty about the regulations to circumvent them.’

Full analysis on the Constitutionally Speaking blog

Affordable Medicines Trust and Others v Minister of Health and Another