Supreme Court of Appeal turns down bid challenging level 4

SUPREME Court of Appeal (SCA) Judge Clive Plasket has dismissed an application by a group of eight Cape Town residents who had challenged the constitutional validity of the level 4 lockdown gazetted by Cogta Minister Dr Nkosazana Dlamini Zuma last year.

The eight residents, Dwayne Esau, Neo Mkwane, Tami Jackson, Lindo Khuzwayo, Mikhail Manuel, Riaan Salie, Scott Roberts and Mpiyakhe Dlamini, had claimed that the regulations of the National Coronavirus Command Council (NCCC) were invalid and had infringed on their freedom of movement, economic activity and fundamental rights.

Last year the group's application, seeking to declare that the lockdown regulations were invalid and that the functions of the NCCC were inconsistent with the South African Constitution and the Disaster Management Act, was dismissed by the Western Cape High Court.

The eight appellants had brought the application against Dlamini Zuma as Cogta Minister and in her capacity as co-chairperson of the NCCC, President Cyril Ramaphosa in his capacity as state president and co-chairperson of the NCCC, and Ebrahim Patel as Minister Trade, Industry and Competition.

The SCA has now dealt the group of residents another blow as it dismissed their appeal, with Judge Plasket finding that the NCCC had taken a policy decision which it was legally entitled to, that had been given legal effect by Dlamini Zuma.

“The challenge to the level 4 regulations based on improper purpose was not properly raised and the level 4 regulations were made in a procedurally fair manner.

“Alternatively, they were made in terms of a rational decision-making process,” Judge Plasket said.

The group also argued that Dlamini Zuma had not allowed enough space for a public participation process that preceded the drawing up of the regulations and that she had not afforded members of the public an adequate opportunity to make representations, as she had allowed two days within which representations were to be forwarded to her.

“During that time, more than 70 000 representations were received from members of the public.

“The SCA held that, in the circumstances, an adequate opportunity had been afforded to members of the public to be heard on the content of the level 4 regulations,” Judge Plasket ruled.

He said that Dlamini Zuma as the Cogta Minister had applied her mind to the representations that she received from members of the public and that the specific movement and economic activity regulations that were challenged were, with two exceptions, reasonable and justifiable limitations of fundamental rights.

Judge Plasket said that the group's challenge to the clothing directions made by Patel as Minister of Trade, Industry and Competition was moot and did not have to be decided.

Judge Plasket said that the only limited success that the appellants had was that their challenge on level 4 regulations on exercise and the sale of over-the-counter hot food was reasonable because the regulations were invalid.

“The success that they have achieved is extremely limited.

“It cannot be said that they have achieved substantial success. They are, accordingly, not entitled to costs.

“However, no costs order will be made against them,” said Judge Plasket.