In the case of Muhammed Bin Hassim Mohamed and others v The President of the Republic of South Africa and others, there was an urgent application to declare a section of the lockdown regulations as unconstitutional.

The applicants raised the issue was that in terms of their religious beliefs, they are required to perform five prayers at a mosque and that the Lockdown Regulations had criminalized their religious obligations.

The respondent, responded by stating that even though the Lockdown regulations entail serious rights limitations, however they are permissible under section 36 of the Constitution, taking into account the relation between the limitation and its purpose and less restrictive means to achieve the purpose. This is known as the proportionality assessment.

The court focused on the question whether the limitations imposed by the Lockdown Regulations are reasonable and justified. The High Court came to the conclusion that the Lockdown Regulations were reasonable and justified given the serious danger to health that the virus represented.

However, the question that the court should have addressed was not only whether the Lockdown Regulations are reasonable and justified. The question it should have addressed is whether the regulations are proportional to the risk being presented.

The full case can be read here: http://www.saflii.org/za/cases/ZAGPPHC/2020/120.pdf