Double-blow for South Africa’s lockdown rules

South Africa’s courts have dealt a double-blow to the country’s lockdown rules this week, with more provisions set to be challenged in the coming weeks as the ban on the sale of tobacco products heads to court.

On Monday (1 June) the Gauteng High Court ruled in favour of business group Sakeliga after it challenged the regulations requiring essential services to register with the Commission for Intellectual Property and Companies (CIPC).

Under level 4 lockdown regulations, only essential services were allowed to operate and required a permit in order to verify their essential services status.

While this is no longer the case at alert level 3, on 12 May the minister of Small Business Development, Khumbudzo Ntshavheni, published a directive stating that a number of the country’s small businesses will need a permit or licence – issued in terms of the Business Act – to operate lawfully.

In its ruling, the court found that there exists no legal requirement to have or produce a CIPC certificate.

“The possibility that the whole of the country, or specific parts thereof, may be returned to Level 4 or Level 5, is at this stage mere speculation. It may happen or it may not,” the court said in its ruling.

“There is currently no provision or need for the issuing of CIPC certificates, even if the issue thereof was previously lawful.

“No enforcement officer is therefore entitled to demand the production of a CIPC certificate by any business, whatever the nature of the business, and will act unlawfully if he does so or if he or she arrests or fines or takes any action against any person for failing to produce such a certificate.”

You can read the judgement here.

Invalid and unconstitutional

In a separate ruling on Tuesday (2 June), the Gauteng High court declared that the country’s alert level 3 and alert level 4 lockdown regulations are invalid and unconstitutional.

The High Court suspended the declaration of invalidity of the regulations for 14 days, meaning that the level 3 regulations remain in effect for now.

In its ruling, the court specifically highlighted how the regulations did not pass the rationality test and have infringed on the Bill of Rights.

“Insofar as the lockdown regulations do not satisfy the rationality test, their encroachment on and limitation of rights guaranteed in the Bill of Rights contained in the Constitution are not justifiable in an open democratic society based on human dignity, equality and freedom as contemplated in Section 36 of the Constitution,” said Judge Norman Davis.

The court has now directed the minister of Cooperative Governance and Traditional Affairs (Cogta), Nkosazana Dlamini-Zuma, in consultation with other ministers, to amend, review, and republish the regulations.

This must be done with due consideration to the limitation each regulation has on the rights guaranteed under the Bill of Rights.

While the judgement is notable for its far-reaching impact, legal experts have already begun questioning some aspects of the ruling and whether government will appeal.

In an opinion column for the Daily Maverick, a legal professor noted that there are problems with striking down the full regulations when the issues relate to a few problematic regulations.

It also casts legal uncertainty over the country’s regulations at a time when coronavirus cases and deaths continue to rise.

Cabinet said in a statement that it will study the judgement before making further comment. It reiterated that the country’s level 3 lockdown regulations remain in place for now.

You can read the full judgement below:

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