Lockdown regulations ruling: 'Flawed' judgment creates more confusion than clarity, say experts

Nkosazana Dlamini-Zuma. (GCIS)
Nkosazana Dlamini-Zuma. (GCIS)
  • The levels 3 and 4 judgment is flawed and if it goes on appeal it will most likely be overturned, says an expert.
  • The judgment falls short by failing to engage with each regulation and demonstrate the irrationality, another one adds.
  • Another expert says the judgment raises important questions of constitutional principle regarding the government's management of the lockdown.

The High Court judgment that declared levels 3 and 4 of the lockdown unconstitutional and invalid has been described by some experts as flawed, with one saying if it goes on appeal, it will most likely be overturned.

This comes as the government on Thursday indicated it intends to appeal the court's ruling. 

The judgment was delivered on Tuesday following an application brought by the Liberty Fighters Network (LFN) and Hola Bona Renaissance Foundation.

In his ruling, Judge Norman Davis found little or no regard was given to the extent of the impact of individual regulations on the constitutional rights of people and whether the extent of the limitation of their rights was justifiable or not.

READ | Here's what the courts said about govt's lockdown regulations

"The starting point was not 'how can we as the 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.

However, speaking to News24 this week, legal counsellor at Lawyers for Human Rights Thandeka Chauke said judges should ensure their judgments were clear and well-reasoned, particularly in cases that concerned public interest.

More confusion, no clarity

"What this judgment has unfortunately done was to create more confusion than clarity and really it was a missed opportunity to address issues surrounding questions about the regulations and their status in a concise manner," she added.

"It is a flawed judgment and if it goes on appeal it will most likely be overturned.

"The main problem with the judgment is that while there was an attack on the regulations as a whole, the judge only looked at specific regulations, the regulations dealing with curfews on exercise, and the regulations dealing with visitations of families and regulations dealing with funerals."

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Chauke said after the judge looked at specific examples and found there were no rational links to the purpose of the national state of disaster, he declared all the regulations in terms of levels 3 and 4 unconstitutional and invalid and "that is where the main problem is". 

She added the judgment itself was not coherent.

The judgment could have provided more detail on why each regulation is irrational.
Dr Justice Alfred Mavedzenge, expert

"So it is difficult for the average citizen or the average civilian to understand what it means and people need to be cautioned to remember that this declaration of constitutional invalidity has been suspended for 14 days for the government to remedy what the problem the judges highlighted is, and even then when there is a declaration of constitutional invalidity in the High Court it must still be referred to the Constitutional Court for final confirmation. 

"So, people need to understand we are still under lockdown and the Level 3 regulations are still applicable right now."

More detail needed

Dr Justice Alfred Mavedzenge, who is an academic and legal advisor at the International Commission of Jurists, said the judgment served as a reminder that even during a crisis such as Covid-19, government measures should still be rational in order for them to be constitutionally valid. 

He, however, added the judgment should have provided more detail on why each regulation was irrational.

"The judgment falls short [by] failing to engage with each regulation and demonstrate the irrationality. The judgment could have provided more detail on why each regulation is irrational.

"The reasoning in the judgment is that because some regulations are irrational, therefore all are irrational," Mavedzenge told News24.  

READ | Tobacco giant argues cigarette ban harms 'emotional wellbeing' of smokers

Another legal expert, Professor Pierre de Vos, stated in an article on his blog site, Constitutionally Speaking, the judgment was flawed, adding it also raised important questions about the duty of the government to act rationally and in a transparent manner. 

De Vos said despite its many flaws, the judgment "raises important questions of constitutional principle regarding the government's management of the lockdown and its belief that as long as it pursues the laudable goals of saving lives for the public good, the regulations will be constitutionally compliant".  

Specific regulations

"The court declared invalid the 'regulations promulgated by the minister of cooperation and traditional affairs in terms of Section 27[2] of the Disaster Management Act 57 of 2002', which suggests all regulations promulgated since the declaration of the national disaster were declared invalid.

"But this the court could not do as neither Level 5 regulations nor Level 3 regulations were properly placed before the court to consider.

"The problem is that a court cannot declare invalid a regulation without considering that specific regulation and without testing whether that specific regulation is irrational, or unjustifiably infringes on one or more constitutionally protected right.

"To make things worse, and this is the second problem, the court discusses specific regulations [some that applied at alert Level 4 and some that apply at alert Level 3] and concludes that these regulations are irrational," De Vos said.

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