Rights group ‘ready to oppose’ attempts to appeal

REGULATIONS governing levels 4 and 3 of the nationwide lockdown “failed the rationality test” this week when the High Court ruled that they contradicted the Bill of Rights. But the government disagrees.

On Tuesday, in a judgment from the North Gauteng High Court, judge Norman Davis declared the regulations propagated by Co-operative Governance and Traditional Affairs Minister Nkosazana Dlamini Zuma were “unconstitutional and invalid”.

In his judgment, Judge Davis said: “The clear inference I draw from the evidence is that once the minister declared a national state of disaster and once the goal was to ‘flatten the curve’ by way of retarding or limiting the spread of the virus (all very commendable and necessary objectives), little or in fact no regard was given to the extent of the impact of individual regulations to the constitutional rights of people and whether the extent of the limitation of their rights was justifiable or not.”

The starting point was not “how can we as government limit constitutional rights in the least possible fashion whilst still protecting the inhabitants of South Africa?” but rather “we seek to achieve our goal by whatever means, irrespective of the cost and we will determine, albeit incrementally, which constitutional rights you the people of South Africa, may exercise”.

Judge Davis added that his ruling did not cover the ban on cigarette sales, as another court was dealing with the matter.

However, the declaration of invalidity was suspended to provide government a two-week grace period to publish reviewed and amended regulations which were consistent with the Constitution.

Minister in the Presidency Jackson Mthembu said the Cabinet had decided to appeal the judgment following a meeting on Thursday morning.

Mthembu said the government believed decisions taken and the regulations declared under the National Disaster Act were lawful and rational to mitigate the spread of the coronavirus and to save lives.

He said Dlamini Zuma would be joined in the appeal by President Cyril Ramaphosa and Health Minister Zweli Mkhize.

“We are very confident that what we did, the articulation of lockdown levels was crafted to save lives,” said Mthembu.

He said the government would ask that its appeal be heard on an urgent basis so that it could obtain certainty on the regulations.

He said the government had consulted legal experts on the matter and believed that a different court could have a different verdict.

“While government appeals the court judgment, current regulations remain in force and we appeal and urge all our people to observe all health protocols. Cabinet had also approved an extension of the National State of Disaster by another month from the June 15 to July 15. The law allows for the National State of Disaster to last for 90 days which necessitates the extension,” he said.

The matter was brought before the court on an urgent basis last week, it was heard on May 28, by the Liberty Fighters Network (LFN) – a contemporary fundamentalist voluntary association group.

The Hola Bon Renaissance Foundation, previously lost a bid in the Constitutional Court to have the lockdown declared unconstitutional in March, but joined the application as a friend of the court.

Reyno De Beer, LFN president, said they noted with “extreme dissatisfaction” that the government intended to appeal the judgment.

“LFN is ready to oppose any appeal attempt by government and will accept any such challenge as representatives for the people of our country.

“But since the judgment, we were astounded by all the thanksgiving messages; not only from local citizens but also from those across Africa and the US.”

De Beer said the LFN accepted its unofficial role as the delegate for the people during the time when all the political parties in Parliament pledged their lockdown support to a “clearly disorientated” government.

“We believe if a referendum could be called then the vast majority of the electorate body would vote in favour of a government that submitted itself to the judgment which, we feel, was a very fair and just assessment of our reality under lockdown.

But instead of bringing its regulations in line with our Constitution and end the abuses of human rights, government appears to have chosen a path of a rather weird resistance.”