Power Cuts - South Africa's State of Disaster Is Being Contested in Court TC_Africa: SouthAfrica
Based on the COVID-19 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.But a legal challenge to the load-shedding declaration or regulations is not restricted to an argument based on legality.
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 . Because load-shedding is not a disaster in the ordinary sense, this particular power arguably underlies many of the measures in the new regulations.
The Fair Trade court was sympathetic towards the executive. Its judgement set a low bar for the Minister of Cooperative Governance and Traditional Affairs to prove that her 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 , the minister needed only to show a"sufficient rational basis" for her action.
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