A high court in South Africa has declared some of the earlier coronavirus lockdown restrictions unconstitutional, but it also ruled that level 3 remains in force for now.
On Tuesday, Judge Norman Davis declared that the regulations promulgated by Co-operative Governance and Traditional Affairs (Cogta) Minister Nkosazana Dlamini-Zuma were “unconstitutional and invalid”.
The lockdown was imposed to curb the spread of the COVID-19 while giving the government time to prepare the healthcare system for the expected spike in virus infections.
For more read: Lockdown Makes No Sense – Says South Africa’s Court
While some citizens are pleased with Judge Davis’ decision, it is likely, in our view, that the judgment will not survive should it be appealed by the government, ENSAfrica, Africa’s biggest law firm, said in its latest newsflash.
The application was heard on 28 May 2020, the same day the alert level 3 lockdown regulations were promulgated.
The alert level 3 regulations had therefore superseded those regulating alert level 4 and, as Judge Davis acknowledged, the alert level 3 regulations had not been placed before him.
“In our view, the question of the validity of the alert level 4 regulations had, therefore, become moot, and the question of validity of the alert level 3 regulations could not properly be decided if the attack relating to those regulations were not properly pleaded on the papers,” wrote Aslam Moosajee, ENSAfrica’s Dispute Resolution Executive and Joshua Davis, aCandidate Attorney.
In assessing the rationality of the regulations, the court appeared to apply a different standard.
At times, the court considered whether a specific regulation was “rational” relative to what was permitted by other regulations.
For example, the court held that it was “irrational” for minicabs to be permitted to operate, while hairdressers could not, and for people to be prohibited from visiting their ailing loved ones, while attendance at a funeral was permitted.
Elsewhere, the court appears to have assessed the reasonableness rather than rationality of the regulations.
For example, the court held that it would be more appropriate to regulate night vigils, by imposing restrictions on how such vigils can be conducted than to ban night vigils entirely.
“In our view, this constituted a misapplication by the court of the test for rationality,” said Moosajee and Davis.
The court declared the regulations invalid, with the few exceptions, without considering the constitutionality of each regulation.
“Because the court did not hold that the act of promulgating the regulations was itself unconstitutional, our view is that without an assessment of each of the various regulations, a court could not declare the regulations invalid in their entirety,” Moosajee and Davis said.
“Various constitutional law experts have expressed views similar to our own about the prospects of this judgment being overturned on appeal.
“It is hoped that the appeal will quickly be heard in order to avoid the uncertainty that this judgment has likely created.”