The Herald (South Africa)

Minister ‘denied right to fair hearing’ in lockdown challenge

● Government files appeal against finding that rules are unconstitu­tional

- Karyn Maughan

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.”

 ?? Picture: SIPHIWE SIBEKO/ REUTERS ?? FIGHTING BACK: Co-operative governance and traditiona­l affairs minister Nkosazana Dlamini-Zuma says the court’s orders are ‘unduly vague’
Picture: SIPHIWE SIBEKO/ REUTERS FIGHTING BACK: Co-operative governance and traditiona­l affairs minister Nkosazana Dlamini-Zuma says the court’s orders are ‘unduly vague’

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