Why government can appeal the High Court’s lockdown ruling

On 2 June 2020, Judge Norman Davis handed down a judgement declaring South Africa’s lockdown regulations unconstitutional and invalid.

Judge Davis suspended the declaration of invalidity for a period of 14 days, during which time the Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini-Zuma was ordered to amend the regulations in line with the Constitution.

While many citizens are likely to be pleased with Judge Davis’ decision, it is likely the judgement will not survive should it be appealed by government, says law firm ENSAfrica.

The legal experts raised three key issues with the judgement below.

1. Level 3 vs Level 4

The application was heard on 28 May 2020, the same day the alert level 3 regulations were promulgated, ENS Africa said.

“The alert level 3 regulations had therefore superseded those regulating alert level 4 and, as Judge Davis acknowledged, the alert level 3 regulations had not been placed before him,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.”

2. Rationality

ENSAfrica added that the court did not apply the test for rationality correctly.

“At times, the court considered whether a specific regulation was ‘rational’ relative to what was permitted by other regulations,” it said.

“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, it said.

“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.

“A further peculiarity with the courts’ rationality assessment is that the regulations relating to education, prohibition against evictions, initiation practices, the closure of night clubs and fitness centres, and the closure of borders, were, without explanation, held to be rational.”

3. Declaration of invalidity

The court declared the regulations invalid, with the few exceptions described above, without considering the constitutionality of each regulation, ENSAfrica said.

“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.”

Constitutionally speaking

Various constitutional law experts have expressed views similar to ENSAfrica about the prospects of this judgement being overturned on appeal.

In his blog ‘Constitutionally Speaking’, Constitutional law expert Pierre de Vos noted that there were flaws with both the judgement and government’s defence.

De Vos highlighted similar issues as ENSAfrica noting that it was problematic for the court to declare all regulations to be irrational and invalid because it concluded that some of them are irrational and invalid. He also felt that the court applied the rationality test incorrectly.

“Given these major shortcomings, the government is likely to appeal the judgement. Such an appeal would in all likelihood succeed, amongst others,” he said.

However, he noted that the judgement raises important questions about the duty of the government to act rationally and in a transparent manner and to limit rights as little as possible.

State of Disaster

Questions have also been raised around the expiration of South Africa’s state of disaster within the next two weeks.

On 15 March 2020, the Minister of Cooperative Governance and Traditional Affairs, Nkosazana Dlamini-Zuma, declared a national state of disaster in South Africa.

This means the current national state of disaster is set to lapse on 15 June, which will leave the government with the option to end the state of disaster or extend it.

Speaking to MyBroadband Daniel Pretorius, a partner at law firm Bowmans, said that when the national state of disaster lapses it means that the current alert level 3 lockdown regulations will no longer be in force.

“The regulations will only remain in force for as long as there is a state of disaster. If the state of disaster is not extended, the regulations will lapse,” said Pretorius.

What is likely to happen is that Minister Nkosazana Dlamini-Zuma will extend the state of disaster for one month at a time.

Pretorius said there is no restriction on the number of times the Minister may extend the state of disaster.

This means Dlamini-Zuma can extend the state of disaster, one month at a time, for as long as she deems it necessary to fight the Covid-19 pandemic.

There is also the option of the declaration of a new national state of disaster declaration for three months with a new set of regulations.

You can read De Vos’ fully analysis here.

Commentary provided by Aslam Moosajee (Executive) and Joshua Davis (Candidate Attorney) of law firm ENSAfrica.

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Why government can appeal the High Court’s lockdown ruling