Lockdown regulations declared unconstitutional

THE government must explain to South Africans, where to from here? This after the North Gauteng High Court in Pretoria yesterday declared the Covid-19 regulations invalid.

In a surprise turn of events, Judge Norman Davis ruled in favour of an urgent application by the Liberty Fighters Network (LFN) to have the regulations – promulgated in terms of the Disaster Management Act (DMA) as earlier announced by Co-operative Governance and Traditional Affairs Minister Nkosazana Dlamini Zuma – declared unconstitutional, unlawful and invalid.

The applicant argued that the DMA restrictions were unlawful and unconstitutional because a state of emergency had not been declared where the government is permitted to infringe on the Bill of Rights.

Further in its application, the LFN also wanted all gatherings that comply with the Regulation of Gatherings Act declared lawful and businesses, services and shops to be allowed to operate if they take reasonable precautions such as wearing masks, gloves and using hand sanitisers. In court papers, LFN president Reyno de Beer said although the government’s intentions were to protect citizens’ rights, its approach had thus far been irrational.

According to De Beer, the DMA regulations were enacted irrationally, improperly and without considering their impact on rights being sacrificed compared to the rights the government claims it is protecting.

”We respectfully submit that the national State of Disaster, also known generally as the ‘lockdown’ amongst the population, declared by Dlamini Zuma in terms of the DMA was irrational and based on incorrect advice and/or reaction to unconfirmed and/or otherwise unreliable international and national medical and health results not taking our country’s unique socio-economic conditions into consideration,” he said.

LFN further said that the limiting of gatherings of more than 50 people was in direct violation of existing legislation and an attempt to prevent protests against the government for its declaration of the State of Disaster.

The Hola Bon Renaissance (HBR) Foundation which was admitted as amicus curiae (friend of the court) in the case, meanwhile asked for the Covid19 temporary relief announced by the government to continue for six months.

In his ruling which found that the regulations are invalid, Judge Davis said they (regulations) “appear, however, to not have been updated and neither do they specifically provide for Covid-19, presumably due to the novelty thereof”.

Judge Davis added that because the government based its drafting of the regulations on the International Health Regulations Act, “It is therefore difficult to assess whether this act can adequately provide for the national executive to deal effectively with the disaster”.

In his order, Davis highlighted that the declaration of invalidity was suspended until Dlamini Zuma, after consultation with other ministers, amends and republishes the regulations.

He gave Dlamini Zuma 14 days to comply with his order.