A High Court judgment declaring almost all of the level three and four lockdown regulations as unconstitutional and invalid has been dismissed by the SCA, reports News24.

In May last year, the Liberty Fighters Network (LFN) launched proceedings in the Gauteng High Court (Pretoria), seeking to have the regulations promulgated under the Disaster Management Act set aside.

The LFN primarily argued the regulations violated the Bill of Rights, in that they exceeded the purpose and objectives of the Act and the regulations were irrational and were based on incorrect advice.

The SCA noted one of the underlying themes in the LFN founding affidavit was one of Covid-19 denialism.

Co-operative Governance & Traditional Affairs Minister Nkosazana Dlamini-Zuma argued advice was taken from medical and scientific experts when making the regulations, unlike the opinions of LFN president Dawid de Beer.

The Minister argued the limitations imposed on fundamental freedoms by the regulations were justifiable, when viewed against the provisions of section 36 of the Constitution.

However, Judge Norman Davis ruled in favour of the LFN and declared the regulations as unconstitutional and invalid with the exception of the prohibition of tobacco.

He ordered that Dlamini-Zuma should formulate changes to the regulations within 14 days.

The SCA held that the LFN's case was based on sweeping generalisations and broad conclusions, notes News24.

‘The Minister was compelled to deal, as best she could, with a case that was framed in almost unintelligible terms. Her explanations as to why she was moved to declare a National State of Disaster and that she took scientific advice before formulating the regulations were not meaningfully contradicted.’

The LFN also did not plead, or in any event properly plead, the constitutional attack that was upheld by the High Court. The SCA added the High Court was willing to see a case where there was none and unjustifiably excused the manner in which it was framed.

‘To sum up on this aspect of the case: The case put forward by the respondents was wholly inadequate. There was no cognisable case to answer. The respondents ignored the fundamental principle that an applicant's case must be set out with sufficient specificity, clarity and supporting admissible evidence so that the functionary or repository of power knows the case that has to be met.’

The SCA also found the irrationality test had not been properly applied and was also not pleaded.

‘A generalised disquiet that the regulations constrain liberty, lack coherence or may have been less restrictively formulated does not suffice to secure a declaration of invalidity. The High Court struck down regulations that had not been challenged, on a case not properly pleaded, and on the basis of reasoning that the invalidity of certain regulations must contaminate all the regulations. In sum, neither the challenge brought, nor the High Court's reasons for sustaining that challenge can be allowed to stand.’

Full News24 report

Judgment