Dlamini-Zuma told to amend invalid lockdown regulations

Level 3 and 4 ‘rules’ found to be unconstitutional and invalid.
Judge Norman Davis said the minister will have to address the deficiencies in the regulations so they do not unjustifiably infringe on people’s constitutional rights. Image: Shutterstock

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.

Unjustifiable

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.

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SCORE: Rationality “SIX”, Irrationality “ROYAL DUCK”.

Well done Judge Davis, the Judiciary once again serve as the foil to Executive overreach. The only regret is that the fools that have overreached (with specific emphasis here on ND-Z) were given 14 days before their actions are ruled invalid. This is too generous, they should have only had 1 week, or even better, 48 hours.

The big question now is how many of the cigarette co’s are going to stay the course with their legal action?

Maybe the leader dressed in an Army uniform showed the intention and the shift in mindset.

His lack of oversight as a “Legal mind” and constitutional expert especially as he was NO1 in drafting the constitution could not have been accidental.

Lets not forget he came out “IN FULL SUPPORT” of that woman in the doek when she arrogantly dictated a new bill of rights that supports her family interests at the expense of South African citizens rights.

We must not let “Our Leader” get away with a nice smile and his likable manner. His promises are empty.

NOBODY IN THE WHOLE GOVERNMENT AND ANC KNEW BETTER THAN HIM THE RIGHTS OF CITIZENS WERE TRAMPLED UPON. NOBODY.

Absolutely agree that this falls on the leaders shoulders – the illegality and irrationality has happened on his watch. To run a critical decision making body on the basis of ‘consensus’ is crazy and shows weakness and / or a total lack of understanding as to why the leader is there in the first place. Sure, get opinions and encourage debate but the leader must make the final decision and not hide behind the tag of consensus.

However, I could not resist having a total dig at ND-Z as the spokesperson of idiocy and infantile logic.

As was his tenure in office under Mr. Zuma, not in two terms (9/10 years) did he flag any issues/raise concerns. Now, this is our number 1 and its the blame of his predecessor – we are surprised at the result?

He is implicated and has no clout, end of story.

How can un-elected ministers rule the state??????????????? This falls straight onto Ramaphosa. Blame the right people

Does circumventing the constitution come with a penalty?????????????????

Yes, it SHOULD come with a severe penalty: prison time.

In SA, jailtime implies things like “time on the golf course for the terminally ill”, and shower-headed people demanding “I want my day in court”. And that’s where it typically stops.

Yeah, but you guys kind of set the trend of not paying for the crimes against humanity stuff. So why should it start now?

Absolutely not as was proven previously when JZ violated the Constitution and was “caught out”.
A feeble apology was enough to sweep this event under the carpet.

Not if you’re from the ANC

More proof (if it was needed) that South Africa does not have a capable state! Unfortunately they have been given 14 business days (3 weeks) to amend – far too long.

I have a possible theory as to why Govt imposed C19 lockdown, with the AIM to cause economic pain, naturally leading to lower SARS revenue.

No crisis is going to waste:

We know Govt has revenue problems (caused by 2 decades of harmful economic policy decisions), and huge SOE debt (Eskom, and they would like to see SAA flying again, so that ‘grand theft’ can proceed). This creates an urgent (once-off?) need from Govt and the public to “upright our detailed train back on track”, as everyone in SA society would benefit, we would be told. The media will refer to it with words like…”social responsibility in this time of special need”, “we all need to stand together as one”, etc.

The cherry on top (for Govt) is thus to temporarily create a revenue crisis…..to create ripe conditions for the public to (easier) give in to the proposed “prescribed assets” on the entire retirement fund industry.

(…in an article by Adriaan Basson, if I can recall in 2019 on Fin24(?) with Pres CR, he soberly stated “…the pension fund pot is ALL THAT WE HAVE LEFT…”)

The narrative put forward, is that is will “only” be a very small % of the entire R4trn retirement fund pot….it will be so negligibly small, we won’t even feel it. And the industry and public will less resist it, thinking “well if we don’t have Eskom, this country is back to the flintstone age after all, with all asset values with it”…so this is a noble cause).

And exactly like the introduction of CGT in 2001, the inclusion & effective rates were much lower than it is today. It was a “foot in the door” at the time….and WHERE are we today? …the stealthy thieves making themselves comfortable at your kitchen table, brazenly helping themselves from your fridge…

(…and 2 decades ago, you would’ve been mightily upset if govt walks across your front lawn, shifting the pot of daisies out of position….to a point where one is apathetic if when govt helps themselves from your fridge).

A crisis like Covid-19, leads to all kinds of “emergency” measures to raise govt income. Sleep with your revolver under your pillow…

Where was the SAHRC during this mass trampling of our constitutional rights? Oh, sorry, I was not aware that their sole function is to hunt vdown social media transgressors.
Buang in his Superman outfit leading the charge?

Probably still trying to take down Eben Etzebeth

They need to study the judgement, mmmm this will take some time. Probably about 6 months – he he !

The Judiciary has again come to the rescue and defense of ordinary citizens. Give that man (judge) a Bells!

Don’t forget CR wrote the constitution, so he knew all along.

When Squirrel became president, he promised to reduce the size of his cabinet. He promised to investigate and implement the reducing of the number of Provinces too in order to cut costs. HE DID NEITHER. What he did do was to second people NOT on the party list and pop them into top positions which cost the country more money and now has cost the country its morality too following the government loosing yesterdays court case.

So Squirrel, what is it going to be? It is time NOW, not tomorrow, next week or a date in the future to cut the size of your useless cabinet down. Get rid of the old guard, get rid of the dinosaurs in your cabinet, and replace them with EDUCATED and intelligent people who can help restore the economy and set South Africa on the right path forward. If you cannot or will not do it, there will be a rapid replacement of you too before you can wipe the **** out of your eyes.

Dlumini’s irrational Lockdown rules were her revenge that she has not been elected a president.

“National Coronavirus Command Council” (NCCC) contains words which resemble quite military-structure characteristics….just two words extracted “National Command” may send shivers down one’s spine.

NCCC. Why does it appear so close to the “CCCP” of the bygone Soviet Union?

“All eyes are on the ANC leadership to see what, if any, action will be taken against Ekurhuleni Mayor Mzwandile Masina for breaking ranks on Twitter and taunting the party to fire him.”

This means that the ANC’s strategy to bring the economy to its knees (“The White Economy”) has been officially acknowledged, even if it was as a simple sligh remark of what Malema said.

So, there you have it. The ANC’s policy all along is to destroy the economy.

I would like to point out that government originally had a mandate to institute lockdown for 21 days. At that stage the different stages of unlocking did not exist and neither was the ban on cigarette and alcohol sales known.

What followed is in my opinion therefore unconstitutional simply because there is no record of this being communicated and the subsequent public agreement therefore.

I base my definition of unconstitutionality on the government’s constitutional role of caretaker of the public.

End of comments.

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