In a judgment that one legal commentator has suggested might have stretched into the territory of ‘judicial over-reach’, the Gauteng High Court (Pretoria) has struck down as unconstitutional the lockdown regulations under the Disaster Management Act, describing government’s response to the Covid-19 pandemic as ‘paternalistic’.

The order was suspended for two weeks to allow Co-operative Governance Minister Nkosazana Dlamini-Zuma time to ‘review, amend and republish’ some of the regulations.

However, an application to appeal is likely to be made in that time, observes legal writer Franny Rabkin in a Mail & Guardian report.

The case was brought by Reyno de Beer and an organisation called Liberty Fighters Network – which identifies itself as a renegade social justice organisation. They asked the court to strike down as unconstitutional all the regulations under the declaration of a National State of Disaster on the basis that the government’s response to the Covid-19 pandemic was a ‘gross over-reaction’.

Judge Norman Davis said the over-reaction argument could not be sustained.

But the declaration of a National State of Disaster ‘places the power to promulgate and direct substantial (if not virtually all) aspects of everyday life of the people of SA in the hands of a single Minister with little or none of the customary parliamentary, provincial or other oversight functions provided for in the Constitution in place.’

In such circumstances, the regulations had to be ‘closely scrutinised’, said the judge.

News24 notes he found that while the Minister's declaration of a State of Disaster was rational, the regulations promulgated for levels four and three in a substantial number of instances are ‘not rationally connected to the objectives of slowing the rate of infection or limiting the spread thereof’.

Davis said each regulation had to be both rational and justifiable under the Constitution and went on to look at individual aspects of the regulations, notes the M&G report.

While some passed muster, he found a number were irrational.

It was irrational that people were allowed to attend funerals yet informal traders, who had less contact with other people on a daily basis than at a funeral, were not allowed to trade.

It was irrational that a hairdresser, willing to comply with preventative measures, must ‘watch her children go hungry while witnessing minicab taxis pass with passengers in closer proximity to each other than they would have been in her salon’, he said.

‘To put it bluntly, it can hardly be argued that it is rational to allow scores of people to run on the promenade but were one to step foot on the beach, it will lead to rampant infection,’ Davis said.

On the evidence before him – an affidavit from the Co-Operative Governance & Traditional Affairs DG on behalf of the Minister – did not show that the Minister had considered each of the regulations individually for their constitutionality, the judge said.

‘The DG’s affidavit contains mere platitudes ... but nothing of substance,’ he said.

‘The clear inference I drew from the evidence is that once the Minister had declared a National State of Disaster … little or, in fact, no regard was given to the extent of the impact of individual regulations on the constitutional rights of people,’ he said.

‘The starting point was not “how can we as a government limit constitutional rights in the least possible fashion while still protecting the inhabitants of SA,” but rather “we seek to achieve our goal by whatever means, irrespective of the costs, and we determine, albeit incrementally, which constitutional rights you as the people of SA may exercise”.’

This was a paternalistic approach, rather than a constitutionally justifiable approach, Davis said.

Full Mail & Guardian report

Full News24 report

Judgment