The high court in Tshwane has ruled that government’s alert Level 4 and 3 lockdown regulations are unconstitutional and invalid.
The Covid-19 regulations were instituted in terms of Section 27 of the Disaster Management Act (DMA) after the government declared a national state of disaster in March.
In a statement, cabinet says it has taken note of this ruling and will make further comment once it has fully studied the judgment.
In the judgment delivered on Tuesday, the court said it would suspend the declaration of invalidity for 14 days, meaning the Level 3 regulations will remain in effect for that period.
Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini-Zuma, in consultation with the relevant ministers, has been directed to review, amend and republish the regulations with “due consideration to the limitation each regulation has on the rights guaranteed in the Bill of Rights”.
Level 4 restrictions were gazetted on April 29 and Level 3 restrictions on May 28.
They all form part of the government’s five-level risk-adjusted strategy to bring different sectors of the economy back to operation following the hard lockdown in March. The alert system would also allow the government to respond to increases in the spread of the coronavirus in an effort to prevent deaths and avoid overwhelming the country’s healthcare facilities.
The judgment comes as a result of an urgent application brought before the court last week by Reyno De Beer, an association called Liberty Fighters Network and the non-profit Hola Bon Renaissance Foundation.
A case of irrationality
In their application, the trio asked the court to declare the national state of disaster and the regulations promulgated by the minister unconstitutional, unlawful and invalid.
They asked that the court declare gatherings lawful and that all businesses, services and shops be allowed to operate as long as they implement the necessary precautionary measures, such as wearing masks and using sanitisers.
The applicants argued that the use of the DMA to respond to the pandemic was “irrational” and the state should have sought to use other existing legislation such as the International Health Regulations Act to deal with the disaster.
Judge Norman Davis ruled that, given the worldwide spread of the virus, the lack of a vaccine or effective treatment – including the need to urgently capacitate the county’s weakened public healthcare system to allow it to cope with a large influx of patients – he could not declare that government’s decision to use the DMA was irrational.
He did, however, find that a number of regulations in Level 3 and Level 4 promulgated by the minister fail the test of rationality, in as far as they are connected to the stated objective of preventing the spread of infection.
The regulations place a number of restrictions on economic and individual movements, including: funeral attendance; the closure of some businesses and services in the informal sector such as hairdressers, informal traders and waste pickers; the prohibition of using public facilities such as beaches or parks; and limitations on exercising hours.
“The clear inference I draw from the evidence is that once the minister had declared a national state of disaster and once the goal was to ‘flatten the curve’ by way of … limiting the spread of the virus … little or in fact no regard was given to the extent of the impact of the individual regulations on the constitutional rights of people and whether the extent of the limitations was justifiable,” said Davis.
Davis said the minister would have to address the deficiencies in the regulations so they do not unjustifiably infringe on people’s constitutional rights to human dignity, equality and freedom.
He cautioned that the Covid-19 pandemic is still a present danger and “to create a regulatory void might lead to unmitigated disaster and chaos”.
“Despite its shortcomings, some structure, therefore, needs to remain in place whilst the minister and the national executive review the regulations and their constitutional approach thereto,” said Davis.
The role of the National Coronavirus Command Council was not part of the application and Davis excluded the dispute over the ban on the sale of tobacco and related products, which is part of a separate application that will be heard by a full court later this month.