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Lockdown regulations for levels 3 & 4 declared invalid and unconstitutional

The High Court has suspended the declaration for a period of 14 days and directed the Minister of Cooperative Governance and Traditional Affairs, in consultation with the relevant ministers to review, amend and republish the regulations.

Cooperative Governance Minister Nkosazana Dlamini-Zuma. Picture: @NationalCoGTA/Twitter

JOHANNESBURG - The Pretoria High Court has declared the regulations promulgated for COVID-19 lockdown levels four and three as unconstitutional and invalid.

Reyno Dawid de Beer and Liberty Fighters Network challenged the regulations as set by Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini-Zuma, arguing that they encroached on and limited their rights as contained in the Bill of Rights in the Constitution.

The court found that the lockdown regulations indeed did not satisfy the rationality test and were not justifiable in an open and democratic society based on human dignity, equality and freedom as contemplated in Section 36 of the Constitution.

The judgment however changes nothing for now.

The declaration of invalidity on the rules is suspended until the minister reviews, amends and republishes the regulations in consultation with Cabinet.

The COVID-19 lockdown alert level three remains applicable.

"Declaration of invalidity is suspended until such time as the minister, after consultation with the cabinet, reviews, amends and republishes the regulations mentioned above with due consideration to the limitation each regulation has on the rights guaranteed in the bill of rights as contained in the constitution," read the ruling.

Although the applicants challenged several regulations, no arguments were made for the relaxation of laws regarding the blanket ban on the sale of tobacco products.

Judge Norman Davis has instead not ruled on the matter, saying that other courts would be dealing with it in the future.

These include challenges by the Fair-Trade Independent Tobacco Association, British American Tobacco and the Democratic Alliance (DA) among others.

Davis said that while Dlamini-Zuma’s declaration of a national state of disaster in terms of Section 27 of the Disaster Management Act in response to the COVID-19 pandemic was found to be rational, the regulations that followed were in a "substantial number of instances not rationally connected to the objectives of slowing the rate of infection or limiting the spread thereof".

Davis made several examples of such irrational decisions in the judgment, referring the limitations of exercise hours under level four and the total ban of night vigils ahead of funerals.

The minister has 14 days to comply with the court order, while she has also been ordered to pay for the costs of the first and second applicants.

READ: High Court ruling on lockdown regulations challenge

200602 Judgment of de Beer v Minister of Cotga by Primedia Broadcasting on Scribd