The North Gauteng High Court has declared the alert level 3 and alert level 4 lockdown regulations invalid and unconstitutional.
The ruling concerns an application 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 High Court ruling states that the regulations, in a substantial number of instances, are not rationally connected to the objectives of slowing down the infection or its spread.
Judge Norman Davis ordered the Minister of Cooperative Governance and Traditional Affairs (COGTA), Nkosazana Dlamini-Zuma to review, amend, and re-publish 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 ruling gave Dlamini-Zuma 14 business days to comply with the order to change the level 3 and level 4 lockdown regulations.
The level 3 regulations will remain in effect until such time Dlamini-Zuma has amended and republished the regulations.
The Ministry in the Presidency said in a media statement it has noted the ruling delivered by the High Court on 2 June 2020.
Regulations which do not need to be changed
In his ruling, Judge Norman Davis ordered Minister Nkosazana Dlamini-Zuma to, after consultation with the relevant cabinet ministers, review, amend, and re-publish the regulations.
While most regulations must be reviewed, there were a few exceptions – regulations 36, 38, 39(2)(d) and (e) and 41 of the regulations promulgated in respect of alert level 3.
“Despite these failures of the rationality test in so many instances, there are regulations which pass muster,” said Davis.
“The cautionary regulations relating to education, prohibitions against evictions, initiation practices and the closure of night clubs and fitness centres, for example, as well as the closure of borders.”
The North Gauteng High Court ruling states that the legality of the ban on the sale of tobacco and related products shall stand as it is currently part of another case.
Below are the regulations which Judge Norman Davis said do not have to be reviewed:
36. Prohibition on evictions
36. (1) Subject to subregulation (2), a person may not be evicted from his or her land or home during the period of Alert Level 3 period.
(2) A competent court may grant an order for the eviction of a person from his or her land or home in terms of the provisions of the Extension of Security of Tenure Act, 1997 (Act No. 62 of 1997) and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 1998 (Act No. 19 of 1998): Provided that an order of eviction may be stayed and suspended until the last day of the Alert Level 3 period, unless a court decides that it is not just and equitable to stay and suspend the order until the last day of the Alert Level 3 period.
38. Prohibition of initiation practices
38. (1) For the duration of the national state of disaster-
(a) male and female initiation practices are prohibited;
(b) a person may not arrange or hold an initiation school or conduct an initiation practice;
(c) a prospective initiate may not to attend an initiation school;
(d) an owner of land may not provide consent for the use of his or her land for the holding of an initiation school; and
(e) a traditional surgeon or medical practitioner may not perform circumcision as part of an initiation practice.
(2) The National House of Traditional Leaders and provincial houses of traditional leaders must take steps to ensure that traditional leaders are aware of the content of this regulation.
39. Places and premises closed to the public
39. (1) A place or premises normally open to the public, where cultural, sporting, entertainment, leisure, exhibitional, organisational or similar activities may take place, is closed to the public and all gatherings at these places or premises are prohibited.
(2) The places or premises referred to in subregulation (1) include-
(d) night clubs;
41. Closure of borders
41 . (1) During the national state of disaster all borders of the Republic must be closed, except for ports of entry designated by the Cabinet member responsible for home affairs, for
(a) the transportation of fuel, cargo and goods; and
(b) humanitarian operations, repatriations, evacuations, medical emergencies, movement of staff of diplomatic and international organisations and other exceptions as may be determined by the relevant Cabinet member by directions.
(2) The Cabinet member responsible for home affairs, or a person designated by him or her, may allow entry into or exit from the Republic for-
(a) emergency medical attention for a life-threatening condition;
(b) the evacuation of a South African national or permanent resident to the Republic;
(c) the repatriation of a foreign national to his or her country of nationality or permanent residence;
(d) the return of a South African national or permanent resident to his or her place of employment, study or residence, outside the Republic; or
(e) daily commuters from neighbouring countries who attend school in the Republic, and who are allowed entry and exit into and from the Republic, subject to compliance with protocols relating to-
(i) screening for COVID-19 and quarantine or isolation, where necessary;
(ii) wearing of a cloth face mask or a homemade item that covers the nose and mouth when in a public place, or another appropriate item to cover the nose and mouth;
(iii) transportation; and
(iv) sanitisation and social distancing measures as per the relevant health protocols on safety and prevention of the spread of COVID-19.
(3) (a) A foreign tourist who arrived in the Republic prior to the period of lockdown, which ended on 30 April 2020, and who remained in the Republic-
(i) must remain in his or her place of temporary residence until otherwise determined by the Cabinet member responsible for international relations and cooperation; and
(ii) may be subject to screening for COVID-19 and be quarantined or isolated, as required.
(b) The evacuation of foreign tourists may be allowed where arrangements, including an arrangement for evacuation by air charter, have been made by the relevant embassy: Provided that a tourist who is escorted to the point of exit may be screened again.
(4) The Cabinet member responsible for home affairs in consultation with the Cabinet members responsible for health and transport may allow certain categories of international travel to resume once it is deemed safe to do so, subject to directions.