Lockdown: it’s not over yet

COURT RULING: MADONSELA SAYS IT’S LIKELY TO BE OVERTURNED ON APPEAL

Despite this week’s high court ruling declaring the lockdown measures unconstitutional and invalid, former public protector Thuli Madonsela says while the judgment makes some valid points, it ‘lacks specifics’ and would probably be overturned on appeal.

Ex-public protector points to ‘a lack of specificity’ and ‘generalisation’.

This week’s high court ruling declaring the national lockdown regulations unconstitutional and invalid has been widely welcomed, but some of the country’s top legal minds – including former Public Protector Thuli Madonsela – have warned the judgment risks being overturned on appeal.

Last week, Judge Norman Davis heard an urgent challenge to the regulations from rights group Liberty Fighters Network and on Tuesday, delivered his judgment.

Davis identified a handful of regulations which he said “passed muster” but declared the majority unconstitutional and invalid and gave Cabinet 14 days to review, amend and republish them.

On Tuesday night, Madonsela tweeted that “there would have been a lot to learn from this judgment if it were more clear, concise, accurate, professionally reasoned and persuasive”.

Yesterday, she told The Citizen it was an important judgment “and an excellent attempt by the judge to deal with a very complex matter in a very limited timeline”.

“He does raise important points around rationality and some of them, I have raised myself,” she said and pointed to Davis’ findings on, for example, the regulations around funerals.

In his judgment, Davis said it was “part of the nature of humanity” to support a loved one who was dying of an illness other than Covid-19.

“Loved ones are, by the lockdown regulations, prohibited from leaving their home to visit if they are not the caregivers of the patient,” he said. “But once the person has passed away, up to 50 people armed with certified copies of death certificates may even cross provincial borders to attend the funeral of one who has departed.

The disparity of the situations are not only distressing but irrational.”

Madonsela said “some of the issues he raises are valid”. “But there are times where his thinking around what is connected and what is not connected may be flawed. Sadly, I think if this matter goes on appeal or review, it’s not likely to stand.” Madonsela pointed to “a lack of specificity” and “generalisation”.

“He gives examples of which regulations he thinks are flawed but then says all of the regulations must go,” she said. “And then, without having discussed why, he saves some.”

She reiterated that the judgment raised important issues around social equality and justice. “But I would be surprised if it was taken to a higher court and upheld,” she said.

“This is sad because there are kernels of wisdom in this judgment that are very helpful insights around the importance of government only using the power it has and the importance of using power for a justified purpose.”

Constitutional law expert Pierre de Vos – in an article on his website, Constitutionally Speaking – said the judgment raised “important questions about the duty of government to act rationally and in a transparent manner, and to limit rights as little as possible”.

But De Vos described the court’s analysis of the regulations as “superficial” and said the order handed down would likely be overturned on appeal because of its “sweeping nature”.

He said the court could not declare all the regulations unconstitutional and invalid, “as neither Level 5 regulations nor Level 3 regulations were properly placed before the court to consider”.

Some of the issues he raises are valid