Lockdown regulations declared invalid and unconstitutional – High Court ruling

The alert level 3 and alert level 4 lockdown regulations have been declared invalid and unconstitutional by the Gauteng High Court.

The Ministry in the Presidency said in a media statement it has noted the ruling delivered by the High Court on 2 June 2020.

The Gauteng High Court suspended the declaration of invalidity of the regulations for 14 days.

The court has directed the Minister of Cooperative Governance and Traditional Affairs (COGTA), in consultation with other ministers, to amend, review, and republish the regulations.

This means that while the lockdown rules have been declared unconstitutional, they will remain in effect until such time the Minister of Cooperative Governance and Traditional Affairs has amended and republished the regulations.

This must be done with due consideration to the limitation each regulation has on the rights guaranteed under the Bill of Rights.

The Government Communications and Information Systems (GCIS) said the Cabinet will study the judgement on alert level 3 and alert level 4 regulations.

Irrational regulations

The ruling concerns an application that was brought against the Minister of Cooperative Governance and Traditional Affairs by the Liberty Fighters Network, which contested the validity of the declaration of the National State of Disaster and the regulations related to it.

The ruling states that the level 3 and level 4 regulations, in a substantial number of instances, are not rationally connected to the objectives of slowing down the infection or its spread.

“I am certain, from what I have seen in the papers filed in this matter and from a mere reading of the regulations, even including the alert level 3 regulations, that there are many more instances of sheer irrationality included therein,” the judge said.

“I find that, in an overwhelming number of instances the Minister has not demonstrated that the limitation of the Constitutional rights already mentioned has been justified in the context of section 36 of the Constitution.”

The High Court added that the regulations related to the sale of tobacco products were excluded from this ruling, pending the finalisation of a separate court case on the subject.

Violating the rights of South Africans

Liberty Fighters Network and its president, Reyno De Beer, lodged this case on 14 May 2020, stating that it was “challenging the legitimacy of all and any of the lockdown regulations which the Minister of Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini Zuma, promulgated since mid-March 2020”.

The organisation argued that “Zuma used her delegated powers to make regulations which by far exceed the provisions of the Act; meaning: she was not then – nor is she now or in future – entitled to do what she did”.

The organisation took issue with a number of decisions made by Dlamini-Zuma, including the prohibition on gatherings and the original declaration of the National State of Disaster.

It alleged that the lockdown regulations have violated almost all clauses in South Africa’s Bill of Rights and that Zuma “humiliated and trampled upon the dignity of the vulnerable citizens and guests of South Africa”.

De Beer said that the application was brought on behalf of all South Africans who have fallen victim to the lockdown regulations.

GCIS statement

Now read: New level 3 lockdown rules – What you can and cannot do

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Lockdown regulations declared invalid and unconstitutional – High Court ruling