Govt set to appeal high court’s ruling on lockdown regulations
THE GOVERNMENT will appeal this week’s high court ruling declaring invalid the regulations pertaining to South Africa’s countrywide Covid-19 lockdown, Cabinet spokesperson Jackson Mthembu announced yesterday.
The decision was taken at a special Cabinet meeting yesterday, called to discuss the North Gauteng High Court ruling that delivered a withering critique of the manner in which the government has crafted restrictions to contain the spread of the novel coronavirus.
“We do not believe that any other court will come to the same conclusion,” Mthembu said of the decision.
“Our decision-making methodology was very open and we did not do anything that will justify what the court arrived at and that is why we are taking the matter on appeal. We are very confident that what we did, the articulation of levels… all this within the ambit of Covid were crafted to save lives, that is what we are about,” he added.
“Many commentators have said South Africa has done very well.”
He said the appeal would be launched in the North Gauteng High Court and would from there probably proceed to the Supreme Court of Appeal.
Judge Norman Davis did not fault the government’s decision in mid-march to declare a national state of disaster in response to the crisis.
However, he held that the lockdown regulations were invalid because they infringed on the fundamental rights of South Africans in a manner that was excessive and irrational.
He said the state had a duty to infringe on rights to the smallest possible degree necessary to achieve its aim of protecting the nation from a health threat.
Instead, Davis said, Co-operative Governance Minister Nkosazana Dlamini-zuma seemed to have adopted the approach that this end justified any means.
The judge said it was hard to understand regulations such as those restricting the categories of clothing that could be sold at point during level 4 of the lockdown, musing that it was hard to see how prohibiting the sale of open-toed shoes or short-sleeved T-shirts would contribute to the fight against a pandemic.
Similarly, he said, the regulations somehow suggested that scores of people could exercise along the beachfront, but should one of them set foot on the sand, this would result in “rampant” transmission of the virus.
He suspended his ruling for two weeks to allow the government to redraft the regulations.
The deadline from the court expires at the same time as the three-month lifespan of the national state of disaster declared in March in response to the global coronavirus crisis.
By law, the government can extend the state of disaster, but only for one month at a time.
Cabinet yesterday agreed, upon request from Dlamini-zuma, to extend the state of disaster until July 15.
The minister received a stinging rebuke from the high court in the ruling that set aside the regulations, both for the manner in which these were drafted and for her department’s lack of responsiveness to the court.
The ruling came in reply to an application from little-known non-governmental organisation Liberty Fighters Network and is one of several court challenges the government is facing to the lockdown or particular prohibitions thereunder, such as the continued ban on the sale of cigarettes.
The government is facing two separate court challenges to the tobacco sales ban, one from the Free-trade Independent Tobacco Association and another, filed this week, from British American Tobacco South Africa.
Mthembu, in reply to a question, left open the door for the government to introduce further regulations in the Western Cape, the province which is home to almost two-thirds of Covid-19 infections nationwide.
President Cyril Ramaphosa and Health Minister Zweli Mkhize will visit the Western Cape today to inspect the preparations the provincial government has put in place to deal with an expected increase in cases