Why lockdown judgment opens up the possibility for more lawsuits against government

  • The Norman Davis judgment on the lockdown regulations may pave the way for more lawsuits.
  • The judgment found that many of the Level 3 and 4 lockdown regulations were unconstitutional and invalid.
  • A declaration of invalidity, which is retrospective, means that conduct performed under an invalidated law is stripped of its authority in law.

The Gauteng High Court judgment, which declared most of the Level 3 and 4 lockdown regulations as invalid and unconstitutional, may pave the way for a litany of lawsuits.

In his judgment, handed down on Tuesday, Judge Norman Davis found that many of the promulgated regulations for Level 3 and 4 of the lockdown were not rationally connected to the objectives of slowing the rate of infection or limiting the spread of the virus.

Davis ordered that the promulgated regulations, which have been declared invalid, be reviewed, amended and republished by Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini-Zuma within 14 days of the judgment.

READ | 'Irrational! Irrational!' Constitutional crisis as judge rules lockdown regulations invalid

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

Law expert James Grant told News24 the judgment did not order that it be enforced with prospective effect only, and is therefore also retrospective in effect.

"A declaration of invalidity, which is retrospective, means that conduct, which was performed under an invalidated law, is stripped of its authority in law and is to be regarded as if it was done without the authority of law," Grant said.

If the judgment is not appealed, which Grant thinks is unlikely, this may open the way for people impacted by the invalid regulations to approach the courts to claim damages and losses which emanated from the invalid regulations being enforced.

"If the court recognises that a law is in contravention of the Bill of Rights, it recognises that the law was always void - which gives rise to the retrospective effect. That is why the Constitution expressly gives a court authority to limit the retrospective effect – because a retrospective declaration of invalidity can cause unanticipated difficulties."

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This may mean that businesses not allowed to operate during Level 4 because of the regulations would, in essence, be able to claim damages from the government - for being forced to not operate using an unlawful regulation.

Equally, any arrest using the regulations which have been declared unconstitutional, can technically be viewed as an unlawful arrest, although you would still have to prove negligence on the part of the arresting officer, Grant explained.

Grant added that you cannot reasonably expect the arresting officer to have known that he was acting on an invalid law at the time.

Grant said the judgment paves the way for litigation, but it does not mean that these claims will succeed as the court may view it as the opening of the "floodgates".

The courts are unlikely to make orders for such claims if it would kill the entity being sued, especially where society needs the entity to survive, Grant explained.

Such litigation, however, may allow the courts to interfere with how the government allocates its resources to try and ameliorate the harm caused.

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