NDZ leaves lockdown fight smouldering with appeal

Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma has filed an application for leave to appeal against a high court judgment that declared various regulations governing lockdown Levels 3 and 4 as unconstitutional and invalid.

In the application, her lawyers argued Judge Norman Davis had erred in striking down the disaster regulations on the basis that a number of Level 3 regulations were irrational and unconstitutional.

“The appeal will have a reasonable prospect of success,” it says in court papers.

The judgment was handed down last Tuesday, following an urgent application brought by the Liberty Fighters Network and Hola Bon Renaissance Foundation.

Davis, in his judgment, slammed a number of the regulations, saying besides the specific ones cited, “there are many more instances of sheer irrationality included therein”.

He said the regulations surrounding funerals were “not only distressing, but irrational”.

Davis said little or no regard was given to the extent of the impact of individual regulations on the constitutional rights of people.

But, Dlamini-Zuma argues that the applicants did not raise an “irrationality attack against the lockdown regulations generally at all”.

“They raised an attack under the Bill of Rights on unidentified regulations.

“The applicants’ failure to raise any valid constitutional attack was not merely a formal defect. It made it impossible for the minister to know what case to meet. She could not defend the rationality of reasonableness of any regulations under attack.”

The court papers stated the application was an attack limited to the disaster regulations up to Level 4 regulations, adding it was not aimed at Level 3 regulations which had not yet been promulgated.

“The minister was accordingly never called upon to defend the Level 3 regulations and, indeed, never had an opportunity to do this.”

The papers said the court held a limited number of provisions of the Level 3 regulations were invalid but only identified a number of them.

“The court’s finding that a limited number of Level 3 regulations are unconstitutional did not justify its order striking down all lockdown regulations, including all the Level 3 and 4 regulations,” read the court papers. –