Flouting subsidiarity in COVID-19 litigation : administrative law perspective

Abstract

In 2020, a number of judicial review proceedings, premised on administrative law grounds, were instituted against the South African government’s response to COVID-19. These proceedings resulted in significant judgments, including One South Africa Movement v President of the Republic of South Africa, Esau v the Minister of Co-operative Governance and De Beer v the Minister of Co-Operative Governance. The application of the principle of subsidiarity in these judgments is the focus of this dissertation. The principle of subsidiarity requires that, where they are available, litigants and courts should invoke lower order norms specifically designed to address a legal problem. Resort to more general, higher order norms should only be had where more specific lower order norms are not available. The principle is particularly important in administrative law where there are various legal bases upon which to engage in judicial review of public power, including the Promotion of Administrative Justice Act 3 of 2000, the principle of legality, section 33 of the Constitution of the Republic of South Africa, 1996 and the common law. It is argued in this dissertation that in the abovementioned judgments, the courts flouted subsidiarity. The courts arguably failed to determine the proper basis for judicial review – i.e. they failed to determine whether PAJA or the principle of legality was the applicable basis for review. Importantly, it is illustrated that the courts’ failure to determine the proper basis for review resulted in the courts holding the exercise of public power to a lower standard of review and this potentially had significant consequences, including for accountability, the rule of law and separation of powers.