Pretoria – The North Gauteng High Court has declared level 3 and 4 of the lockdown regulations unconstitutional, saying "some of the regulations promulgated by the government simply did not meet the rationality test in preventing the spread of Covid-19".
The order is, however, suspended until such time Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini Zuma, after consultation with the relevant cabinet ministers, reviews, amends and republishes the regulations.
Judge Norman Davis ordered the minister to comply with this process within 14 days.
This followed an urgent application by a group who called themselves the Liberty Fighters Network, in which they asked the court to declare the national state of disaster, established under the Disaster Management Act, unconstitutional and unlawful.
Reyno de Beer, of Derdepoort in Pretoria, who represented the group in court, said the Disaster Management Act regulations are invalid and illegal as they are unreasonable and violated the rights of almost every citizen in the country.
He said it not only controlled business activities which are being stifled, but also almost every aspect of everyday life.
Judge Davis found that some of the regulations promulgated by the government simply did not meet the rationality test in preventing the spread of Covid-19. The judge questioned various aspects of the lockdown provisions.
He said, among others: “To put it bluntly, it can hardly be argued that it is rational to allow scores of people to run on the promenade, but were one to step a foot on a beach, (it) will lead to rampant infection.
“And what about a poor gogo who had to look after four youngsters in a single-room shack during the whole lockdown period? She may still not take them to the park, even if they all wear masks and avoid other people.”
The judge commented that during argument in court, counsel for the minister conceded that even if the government’s attempts at providing economic relief functioned at its optional best, monetary recompense cannot remedy the loss of rights such as dignity, freedom of movement, assembly, association and the like.
“The practicalities (or rather impracticalities) of distributing aid relief in the form of food parcels highlights yet another absurdity.
"A whole community might have limited contact with one another... but are now forced to congregate in huge numbers, sometimes for days, to obtain food which they would otherwise have prepared or acquired for themselves.”
The judge said he is sure, at the mere reading of the regulations, even including level 3, there are many more instances of “sheer irrationality” included in the regulations.
He said one can only think of the irrationality under level 4 of being allowed to buy a jersey but no open-toed shoes.
“One must also be mindful of the fact that the Covid-19 danger is still with us 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.”
The judge said the legality of the ban on the sale of tobacco and related products is an issue which shall stand over for determination by a full court of this division already constituted for that purpose.
The Office of the Presidency, meanwhile, said the government has taken note of the judgment declaring alert levels 3 and 4 lockdown regulations invalid.
It said it will make a further statement once the government has fully studied the judgment.