Minister ‘denied right to fair hearing’ in lockdown challenge
● Government files appeal against finding that rules are unconstitutional
The government says a scathing Pretoria high court ruling that declared the Covid19 lockdown regulations invalid was “not justified” and that co-operative governance and traditional affairs minister Nkosazana Dlamini-Zuma was denied “her right to a fair hearing”.
Dlamini-Zuma’s lawyers on Monday filed an application for leave to urgently appeal the ruling given by judge Norman Davis.
He found that the regulations promulgated by DlaminiZuma in respect of alert levels 4 and 3 of the lockdown “in a substantial number of instances are not rationally connected to the objectives of slowing the rate of infection or limiting the spread thereof”.
The judge further struck down the regulations, formulated by the government under the Disaster Management Act, as “unconstitutional” and gave Dlamini-Zuma two weeks to “review, amend and republish” some of the regulations.
In court papers, DlaminiZuma’s lawyers argue that the appeal needs to be “urgently heard and determined by the Supreme Court of Appeal” because the “regulations drastically affect the lives of all South Africans on a daily basis”.
“If they are in breach of the constitution, that needs to be determined as a matter of high urgency.
“If, on the other hand, they are constitutionally compliant and thus valid and binding, that too must be determined without delay.”
They also point out that the level 3 regulations were published only on the day that the case was heard and contend that the minister was therefore not given any chance to defend or justify those regulations before they were declared invalid.
Dlamini-Zuma’s lawyers argue that Davis made multiple errors in his decision, including that the orders he granted were “unduly vague” and that he
“strayed beyond the pleadings” in the case, which was launched by Reyno de Beer and an organisation called Liberty Fighters Network during level 4 of the lockdown.
De Beer and Liberty Fighters Network had asked the court to strike down as unconstitutional the declaration of a national state of disaster and all the regulations under it, on the basis that the government’s response to the Covid-19 pandemic was a “gross overreaction ”— an argument that Davis rejected.
Instead, he focused his critique of the state on what he found to be the irrationality of a number of the lockdown regulations issued by DlaminiZuma.
“The deficiencies in the regulations need to be addressed by the minister by the review and amendment thereof so as to not infringe on constitutional rights more than may be rationally justifiable,” Davis said.
Dlamini-Zuma’s lawyers say these orders are “unduly vague because they do not tell the minister what is required of her to comply with the orders”, nor do they “tell the minister which regulations she must amend and how she must amend them”.
They further argue that De Beer and the Liberty Fighters Network “did not raise any valid constitutional attack on the lockdown regulations at all”.
“They did not raise a general irrationality attack. They raised an attack under the bill of rights on unidentified regulations, on undisclosed grounds and for unknown reasons.”
This, they argue, “made it impossible for the minister to know what case to meet”.
“She could not defend the rationality or reasonableness of any of the regulations under attack.
“The inadequacy of the pleading accordingly fundamentally violated her right to a fair hearing under section 34 of the constitution.”