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Cabinet studying judgment declaring levels 4 & 3 lockdown regulations invalid

The court gave government - through Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma - 14 days to fix 'deficiencies' in the regulations.

FILE: Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini-Zuma updates South Africans on regulations pertaining to the COVID-19 lockdown. Picture: @GovernmentZA/Twitter

JOHANNESBURG – Cabinet on Tuesday said it was still studying the Pretoria High Court’s judgment that declared regulations under levels 3 and 4 of the national lockdown invalid and unconstitutional.

The High Court sided with Reyno de Beer and his organisation Liberty Fighters Network (LFN), which argued the regulations failed to satisfy the rationality test as they encroached on the rights guaranteed to citizens in the Constitution’s Bill of Rights.

The court gave government - through Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma - 14 days to fix “deficiencies” in the regulations.

The COVID-19 lockdown alert level three remains applicable.

The ruling by judge Norman Davis stated that these needed to be reviewed and amended as to not infringe on constitutional rights.

"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.

According to the judgment, the “constitutional crisis” in the regulations was due to various instances of irrationality that impact on the limitation issue as contained in the Constitution.

Davis said he failed to find any evidence in the papers submitted by government that Dlamini-Zuma had at “any time” considered the limitations on the rights of people, which were brought on by each of the regulations when they were promulgated.

The judge cited the impact of lockdown on the livelihoods of people in the informal sector, as well as the beauty and haircare business, during funerals, and restrictions on exercise.

Davis said 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”.

Some sections of society had complained of the draconian nature of the lockdown rules, saying it took away their civil liberties.

In a statement issued on Tuesday night, Cabinet said it noted the judgment and would comment at a later stage.

Read the full judgment below:

200602 Judgment of de Beer ... by Primedia Broadcasting on Scribd

'VICTORY FOR HUMAN RIGHTS'

Meanwhile, De Beer said the High Court ruling was a victory for human rights in South Africa.

He said the court emphasised their argument that there needed to be a balance between saving lives during the COVID-19 pandemic and the promotion of human rights.

“We are going to make sure that government complies with the ruling. Obviously, government cannot just ignore this,” De Beer said.

Although the applicants challenged several regulations – including the suspension of trade in the informal sector and the blanket ban on night vigils before funerals, among others – no arguments were made for the relaxation of laws regarding the prohibition of the sale of tobacco products.

Judge Davis did not rule on the tobacco products matter, saying other courts would be dealing with it in future.

These legal challenges include that of the Fair Trade Independent Tobacco Association, which will be heard next week, British American Tobacco South Africa, and the Democratic Alliance, among others.

For official information about COVID-19 from the Department of Health, please click here.