South Africa : Lockdown regulations declared invalid and unconstitutional by high court

The government has been given a little more than two weeks to overhaul lockdown regulations put in place to curb the spread of the coronavirus after a court found them to be unconstitutional and invalid.

This was an order of the high court in Pretoria, which found in favour of Reyno de Beer and Liberty Fighters Network, a little-known organisation of which De Beer is president.

Tuesday’s ruling makes it the first successful legal challenge to the measures put in place by the government when the country moved to level 4 of the risk-adjusted strategy on May 1.

A month later, SA moved to level 3, which saw the easing of restrictions on movement and an opening up of the majority of sectors in the economy.

The minister was directed to comply with the order within 14 business days. During the suspension, the level 3 regulations gazetted by the government will stay in place.

The cabinet said in a statement it noted the judgment and would make further comment once it had studied it fully.

The country has been on a nine-week lockdown, one of the strictest in the world, as it moved to curb the spread of the Covid-19 pandemic, which has affected 35,812 people to date.

The successful court application comes as the government also faces a DA application to the Constitutional Court to declare the legislation governing SA’s lockdown, the Disaster Management Act, unconstitutional.

The top court has indicated that it will consider argumentsin the DA’s application for direct access.

De Beer and Liberty Fighters Network did not challenge the validity of the act but the regulations gazetted by the government.

The government has come under fierce criticism over some of the bizarre and arbitrary regulations, which included things such as banning the sale of cooked foods and prescribing what items of clothing people may buy.

The matter around the regulations was heard last week and judgment handed down on Tuesday.

Judge Norman Davis said traditional affairs minister Nkosazana Dlamini-Zuma’s declaration of a national state of disaster in terms of section 27(1) of the Disaster Management Act in response to the pandemic was found to be rational.

However, the regulations in respect of alert levels 4 and 3 were not “rationally connected to the objective of slowing the rate of infections or limiting the spread thereof”.

“Insofar as the ‘lockdown regulations’ do not satisfy the ‘rationality test’, their encroachment on the limitation of rights guaranteed in the bill of rights contained in the constitution [is] not justifiable in an open and democratic society based on human dignity, equality and freedom as contemplated in section 36 of the constitution.”

The deficiencies in the regulations needed to be addressed by Dlamini-Zuma, reviewed and amended so as not to infringe on constitutional rights more than may be justifiable.

Shortcomings

“One must be mindful of the fact that the Covid-19 danger is still with us and to create a regulatory void might lead to unmitigated disaster and chaos.”

He said despite the shortcomings, some structure needed to remain in place while the minister and the national executive reviewed the regulations.

After declaring the regulations unconstitutional and invalid, the court suspended their invalidity until Dlamini-Zuma, in consultation with relevant cabinet ministers, reviewed, amended and republished the regulations.

This was except for regulations that Davis said “pass muster”, such as regulations relating to education, the prohibition of evictions, initiation practices, the closure of nightclubs and casinos, and the closure of borders.

The regulations on the ban on the sale of tobacco products were excluded from the order pending the finalisation of court action against it.

The high court will hear an application brought by Free Trade and Independent Tobacco Association (Fita), a tobacco lobby group representing smaller cigarette manufacturers, to have the ban on the sale of tobacco products reviewed and set aside on June 9 and 10.

The Council for the Advancement of the SA Constitution’s Lawson Naidoo said the judgment was far reaching and provided a serious challenge for government.

“What would be of concern to government is the rather lackadaisical approach it appears government took in responding to this matter given that the affidavit was filed not by the minister but by the director-general, and the judge refers to that affidavit being rather superficial at times and not engaging with the issues,” he said.  (Business Day SA)