Level 3 regulations mostly ‘irrational’
The Cooperative Governance Minister Nkosazana Dlamini-Zuma must, together with the relevant ministers, review, amend and re-publish the Level 3 lockdown regulations in terms of an order on Tuesday 2 June by the Gauteng High Court.
Judge Norman Davis, who presided over an urgent application by a nongovernmental organisation, Liberty Fighters Network (LFN), declared most of the Level 3 and 4 regulations unconstitutional. The ruling is suspended for two weeks to allow time for the minister to carry out amendments.
In his pronouncement, Davis says that the regulations in a "substantial number of instances are not rationally connected to the objectives of slowing the rate of infection or limiting the spread thereof", and the regulations' encroachment on rights guaranteed in the Bill of Rights are not justifiable in an open, democratic society based on human dignity and freedom as contemplated in the Constitution.
He uses the example of loved ones being prohibited by the regulations from leaving their home to visit a dying family member even if taking any prescribed precautions, 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 and is no longer in need of support. The disparity of the situations are not only distressing but it is irrational."
Davis said some regulation did pass muster. "The cautionary regulations relating to education, prohibitions against evictions, initiation practices and the closure of night clubs and fitness centres, for example, as well as the closure of borders," he said.
Tobacco sales ban
Davis ordered that the legality of the ban on the sale of tobacco stand over for determination by a full court.
In a statement issued on Tuesday,
Cabinet spokesperson Phumla Williams said Government has taken note of the judgment. "Alert Level 3 regulations remain in operation for now. The Cabinet will make a further statement once it has fully studied the judgment."
LFN spokesperson Reyno de Beer said they are happy that the court agrees with them. "Because of the lockdown, some of our supporters and members did not have an income and could not pay their rent. In many cases their electricity was cut, they were intimidated and thrown out of their places of residency. We have 90 people who work for a hairdressing chain store - mostly single mothers - who cannot feed their children. The meagre R350 that Government granted had no use for them. We are glad that Government can not come back with the same set of rules."
Regarding the prosecution of people who
did not adhere to the lockdown regulations, Millers attorney Salome van Wyk told George Herald that people who have already been prosecuted would probably be able to apply for their sentence to be put aside.
Asked about the actions of the police and if they could face claims by citizens they arrested for transgressing the regulations, she said the police could not decide for themselves that the regulations were unconstitutional as they were promulgated by Government and therefore, if they acted rightfully, their actions would be regarded as legal.