The way in which the courts dealt with legality in the COVID-19 tobacco cases will bind other courts in their deliberations on the same or similar issues.
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.
There could, however, be different interpretations of the quality of rationality required, particularly if the minister relies heavily on section 27 of the. This section allows her to make regulations or issue directions concerning “other steps that may be necessary to prevent an escalation of the disaster”.
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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