Court allows Dlamini-Zuma leave to appeal blanket invalidity of lockdown regulations

Nkosazana Dlamini-Zuma. (GCIS)
Nkosazana Dlamini-Zuma. (GCIS)
  • Only one of four arguments advanced by government for leave to appeal a judgment declaring lockdown regulations invalid and irrational was granted by the High Court on Tuesday.
  • Judge Norman Davis granted Minister Nkosazana Dlamini-Zuma leave to appeal the "blanket" declaration of invalidity of the regulations governing the lockdown. 
  • The court ruled that Dlamini-Zuma has 10 days in which to amend the regulations which he found to have been irrational. 

Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma will be allowed to appeal the "blanket" declaration of invalidity of the regulations governing the lockdown, but has 10 days in which to amend those which the court found to be irrational.

Judge Norman Davis on Tuesday handed judgment in Dlamini-Zuma's application for leave to appeal, granting it on the minister's argument that his judgment gives a "blanket" declaration of invalidity.

"The conclusions are that the minister should be granted leave to appeal against the 'blanket' declarations of invalidity but should still be required to review and remedy those identified regulations which displayed lack of rationality and constitutional compliance," Davis said in his judgment.

In the application, her lawyers argue Davis had erred in striking down the disaster regulations on the basis that a number of Level 3 regulations were irrational and unconstitutional.

Davis, in his judgment, slammed a number of the regulations, saying besides the specific ones cited, "there are many more instances of sheer irrationality included therein".

He said the regulations surrounding funerals were "not only distressing, but irrational" as were the rules governing exercise and informal trading.

He also mentioned hairdressers and salons as examples of irrational regulations. The judge drew exception to beaches and parks being closed. 

 In his order on Tuesday, Davis said Dlamini-Zuma will have 10 business day to correct those irrational regulations.

He said: 

Ironically though, the factual position is that some of these regulations may already have been 'corrected' if not in respect of the constitutional approach, then at least to a larger or lesser degree, in respect of the rationality requirement.

This is as government has allowed for hairdressers and salons to reopen under "advanced level three" and more sectors of the economy have been allowed to reopen.

The application was brought by the Liberty Fighters Network (LFN) and the Hola Bona Renaissance Foundation.

Davis said in his judgment on 2 June that government did not give regard the regulations had on the constitutional rights of people.

"The starting point was not 'how can we as government limit Constitutional rights in the least possible fashion whilst still protecting the inhabitants of SA?'; but rather 'we will seek to achieve our goal by whatever means, irrespective of the costs and we will determine, albeit incrementally, which Constitutional rights you as the people of South Africa may exercise'," he said.

Dlamini Zuma asked for leave to appeal the judgment based on four arguments:

  • That the Liberty Fighters Network failed to raise a valid constitutional attack.
  • That the High Court had "strayed beyond the pleadings".
  • That the "wholesale" declaration of invalidity was not justified; and
  • That the orders granted are unduly vague.

The court ruled that Dlamini-Zuma's contention that the applicants failed to raise a valid constitutional attack was not supported in facts.

The court conceded the challenges were raised "inelegantly" but that it was drafted by a layman.

Davis further rejected Dlamini-Zuma's argument that the court had "strayed beyond the pleadings", saying it was her lawyers who asked the court to consider Level 3 regulations. 

He said that he finds reasonable prospects of success on Dlamini-Zuma's argument that the judgment led to a "wholesale" declaration of invalidity of all lockdown regulations. He granted leave to appeal on this matter.

The court disputed Dlamini-Zuma's argument that the judgment was vague.

" ... For this court to have prescribed how exactly the regulations must be amended would improperly have crossed the boundaries of the separation of powers," Davis said.

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