The Pretoria High Court has ruled that Level 3 and 4 lockdown regulations are unconstitutional and invalid.
In a ruling delivered by the North Gauteng Division of the High Court today, headed by Judge Norman Davis, the court found that “The regulations promulgated in respect of Levels 4 and 3 in terms of the Section 27(2) of the Disaster Management Act by the Minister in a substantial number of instances are not rationally connected to the objectives of slowing the rate of infection or limiting the spread thereof.”
The issue was brought to court by Reyno Dawid de Beer and Liberty Fighters Network. The applicants challenged the regulations put in place by Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini-Zuma, arguing that they were unconstitutional.
While the declaration of a national state of disaster was found to be rational, many regulations were found to be unjustifiable in the context of Section 36 of the Constitution.
In the ruling, issues of regulations were raised related to the limitation on exercise, who may attend funerals, and the practicalities of distributing aid relief. The issue of the tobacco ban was not included, as there are separate court cases pending.
Restrictions that do pass the rationality test, according to the Court, include those related to education, prohibitions against evictions, initiation practices, the closure of night clubs and fitness centres and the closing of borders.
The court has now ordered the Minister of Cooperative Governance and Traditional Affairs to review and amend the regulations. The declaration of invalidity is suspended for 14 days to provide ministers time to review, amend and republish the regulations. During this period, the current Level 3 regulations will remain in place.
Government has since responded, saying that Dlamini-Zuma will meet with Cabinet to review and amend the regulations.
“Government has taken note of the judgment delivered by the Gauteng Division of the High Court today, 2 June 2020, declaring the Alert Level 4 and Alert Level 3 Lockdown regulations unconstitutional and invalid. The court suspended the declaration of invalidity for a period of 14 days. This means that the Alert Level 3 regulations remain in operation for now.”
“The court has further directed the Minister of Cooperative Governance and Traditional Affairs, in consultation with the relevant Ministers to review, amend and republish the regulations with “due consideration to the limitation each regulation has on the rights guaranteed in the Bill of Rights”. Cabinet will make a further statement once it has fully studied the judgment.”
Picture: Twitter / Nkosazana Dlamini-Zuma
Read the judgement here: 464072965-200602-Judgment-of-de-Beer-v-Minister-of-Cotga
Read the government’s response here: Cabinet Statement 2 June 2020