In a judgment delivered on 2 June 2020 Judge Norman Davis of the Gauteng High Court in Pretoria has declared the vast majority of the regulations governing the Level 4 and 3 lockdowns as being unconstitutional.

Herewith a brief summary of the judgement:

In essence, the applicants wanted to have the entire state of disaster declared unconstitutional. After hearing argument and reading the affidavits that were filed, the court held that there was enough evidence to show that the decision to declare the State of Disaster was perfectly justifiable, and that the limitation that this placed on all of our human rights was in line with our constitution.

The applicants then also asked the court to declare the lockdown regulations (Levels 3 and 4) unconstitutional. Here the court confirmed that the final decision making power in determining what measures are to be implemented when dealing with such a situation lies exclusively in the hands of the Minister of Cooperative Governance and Traditional Affairs, Dr Dlamini Zuma, who must exercise these powers after consultation with the other cabinet members. However, the power is then limited to decisions which will assist and protect the public, provide relief to the public, protect property, prevent or combat disruption, or deal with the disruptive nature of the disaster.

The court also confirmed that in deciding on any of these issues, there must be a rational connection between such decisions and the purpose for which such a power was conferred.

As such, the court was required to test the rationale behind the limitations that have been imposed under Levels 4 and then 3, and to ask itself whether they reasonably and justifiably infringe on our constitutional rights.

The court took serious issue with many of the limitations. For example, it questioned the rationale behind the regulation that prevented someone from visiting and supporting a dying family member during lockdown (unless they were the carer), but when the family member has died, 50 people armed with copies of his death certificate may travel from all across South Africa to bury him! In another example the court noted the irrationality of the situation where a single mother who works in a salon, and who would maintain all the required health and safety protocols in her business, was prevented from earning a living to support her family when she can see people huddled together traveling in a taxi.

The judge pointed out many other irrational aspects in the regulations.

According to the judge, the only regulations which were justifiable were the regulations prohibiting evictions, prohibiting initiation practices, and closing certain public places, such as night clubs and casinos. The closing of our international borders as provided for in the current regulations was also justified.

The court also briefly reflected on the prohibition of tobacco sales but as this is at the center of another pending high court application, it refused to express a view and left the matter to be decided by that court. That case will be heard later this month, and we are confident that those regulations will also be shot down.

In a nutshell the court found that (save for the few instances referred to above), there is no rational connection between the regulations that have been passed and the and the results they are intended to achieve. The regulations were therefore found to place unreasonable limitations on our rights and were accordingly unconstitutional.

The minister has now been given 2 weeks to draft new regulations that will be in line with our constitution.

So where to from here?

The government can appeal the decision. They can also ask for more time in which to draft revised regulations. Whatever happens, the current regulations will continue in force for at least the next 14 days.

Coincidentally, in terms of the Disaster Management Act, the current State of Disaster terminates automatically after 3 months and this date coincides with the end of this 14-day period. We suspect therefore that the whole playing field will have changed by that date and we will in any event require new regulations to be in place.

Let’s hope that these new rules will be drafted with more consistency and with more emphasis on the preservation of our rights as enshrined in the constitution.

Until then, our advice is the following: Keep Calm – and let’s just carry on for now!

We will keep you posted.

Warmest regards
Miltons Matsemela

03 June 2020