High court decision to declare lockdown regulations invalid was judicial overreach, SCA hears

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The legality of lockdown regulations has made it to the SCA.
The legality of lockdown regulations has made it to the SCA.
Nardus Engelbrecht/Gallo Images
  • Cogta Minister Nkosazana Dlamini-Zuma is appealing a high court ruling that lockdown regulations are unconstitutional and invalid. 
  • Liberty Fighters Network, which brought the case against Dlamini-Zuma, refused to take part in online court proceedings. 
  • The SCA reserved judgment in the matter. 

The high court judgment declaring lockdown regulations invalid and unconstitutional was a case of judicial overreach, the Supreme Court of Appeals (SCA) heard on Wednesday. 

Advocate Geoff Budlender SC, on behalf of the Council for the Advancement of the South African Constitution, told the SCA justices that the Gauteng High Court in Pretoria's decision to declare lockdown regulations invalid and unconstitutional amounted to judicial overreach. 

Liberty Fighters Network (LFN) took Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma to court over last year's lockdown regulations. 

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The high court ruled in their favour, saying while declaring a state of disaster was rational, some of the regulations were irrational, thus making all Disaster Management Act regulations unconstitutional and invalid. Dlamini-Zuma is appealing the decision.  

On Wednesday, LFN and Hola Bon Renaissance Foundation - which is amicus curiae -  refused to participate in the online court hearing. Instead, they wanted the matter to be heard in an open court. LFN's Reyno de Beer also wanted the five justices presiding over the case to recuse themselves. 

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Budlender said the judge in the high court was "panicked by the case".

It is the sort of moral panic that sometimes infects a situation. The court declared regulations invalid without saying why they are invalid. It's deeply ironic in a case where the learned judge criticised the minister for not giving reasons for what she did. He then gave orders of invalidity without giving reasons why.

He said the ruling undermined the public's confidence in the courts.

This is in truth a case of judicial overreach, and it was made no doubt with the best of intentions, but with the greatest respect, it will be appropriate for this court to say something about that. An endeavour of this kind, in the end, undermines the endeavour of courts to hold power to account because the courts look as though they are meddling in things they really don't know about and things they plainly got wrong.

The minister's legal representative, advocate Wim Trengrove SC, also said the high court had erred in its judgment.

"His [De Beer] attack is that all of the regulations violate many provisions of the Bill of Rights. With respect, when one contends that a law is unconstitutional, then you have to identify the particular law, the constitutional right it violates. The high court judgment was wrong."

The SCA reserved judgment in the case. 

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