The Pretoria High Court has ruled that the regulations enforced upon South Africans under levels 3 and 4 of the nationwide lockdown to curb the spread of the Covid-19 coronavirus are “unconstitutional and invalid”.
The court on Tuesday instructed government to amend particular restrictions which infringe on citizens’ rights as enshrined in the Bill of Rights contained in the Constitution within 14 days.
The court application was instituted against Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma by contemporary fundamentalist voluntary association group, Liberty Fighters Network.
In their application filed on May 13, the organisation called on the court to declare the national state of disaster “unconstitutional, unlawful and invalid”.
Through its president, Reyno Dawid de Beer, the Liberty Fighters Network also requested the the court beyond declare unconstitutional all the regulations promulgated in terms of Section 27(2) of the Disaster Management Act on March 18.
Judge J Davis however ruled that some of the regulations were contrary to the civil liberties afforded to citizens by the Bill of Rights.
“The regulations promulgated by the minister of cooperative governance and traditional affairs in terms of section 27 (2) of the Disaster Management act 57 of 2002 are declared unconstitutional and invalid.”
“The declaration of invalidity is suspended until such a time as the minister, after consultation with the relevant cabinet ministers, review, amend and republish the regulations mentioned, regulations promulgated under level 3, with due consideration to the limitations each regulation has on the rights guaranteed in the Bill of Rights contained in the Constitution,” read Davis’ ruling.
The court gave the government 14 days to amend the invalid regulations that were still at play under level 3 of the lockdown, given that some have been rendered moot by the lowering of the restrictions.
The cigarette ban would likely be among the stringent regulations that Dlamini-Zuma and the national Covid-19 command council would have to revisit.
Tax Justice SA (TJSA) was the first to welcome the high court judgment and urged President Cyril Ramaphosa to lift the cigarette ban “immediately”.
TJSA founder Yusuf Abramjee said “the judgment gives government 14 days to put its house in order. This is the time for President Ramaphosa to show true leadership and admit the error of the cigarette ban”.
“The prohibition has failed dramatically. Smokers are still smoking and criminals in illicit trade are getting rich. Meanwhile, South Africans are being robbed of R35 million a day in taxes,” he said.
“The ban has turned 11 million smokers into criminals, while allowing the real crooks to grow so strong they may be impossible to remove.
“As well as lost taxes, the government will only waste more money if they try to defend this unworkable ban in court,” Abramjee said.
Cabinet spokesperson Phumla Williams has responded to the ruling, saying government had taken note of the judgement.
“The court suspended the declaration of invalidity for a period of 14 days. This means that the Alert Level 3 regulations remain in operation for now.”
“The court has further directed the minister of cooperative governance and traditional affairs, in consultation with the relevant ministers to review, amend and republish the regulations with due consideration to the limitation each regulation has on the rights guaranteed in the Bill of Rights and cabinet will make a further statement once it has fully studied the judgement”.
Presidency spokesperson Khusela Diko and Dlamini-Zuma’s spokesperson Mlungisi Mtshali were both unavailable for comment at the time of publishing.