The Gauteng Division of the High Court has declared the regulations for Level 3 and Level 4 as both unconstitutional and invalid.
This follows Reyno Dawid de Beer and Liberty Fighters Network challenging the regulations set by the Minister of Cooperative Governance and Traditional Affairs, Nkosazana Dlamini-Zuma. They argued that the regulations encroached on their rights as contained in the Bill of Rights in the Constitution.
According to the High Court, the lockdown regulations do not satisfy the rationality test.
However, the declaration of invalidity is suspended until such time as the Minister, after consultation with the relevant cabinet minister/s, review, amend and republish the regulations in respect of Alert Level 3, giving due consideration to the limitation each regulation has on the rights guaranteed in the Bill of Rights contained in the Constitution.
The Minister has 14 days to comply with the High Court’s ruling.
In applying the rationality test, Judge Norman Davis explained there were millions of South Africans working in the informal sector.
“There are traders, fisheries, shore-foragers, construction workers, street-vendors, waste-pickers, hairdressers and the like who have lost their livelihood and the right to “eke out a livelihood” as the President referred to it as a result of the regulations. Their contact with other people are less on a daily basis than for example the attendance of a single funeral. The blanket ban imposed on them as opposed t the imposition of limitations and precautions appear to be irrational.”
To illustrate this irrationality further, the High Court claimed in the case of hairdressers: a single mother and sole provider for her family may have been prepared to comply with all the preventative measures proposed in the draft Alert Level 3 regulations. However, she must now watch her children go hungry, while witnessing minicab taxis pass with passengers in closer proximity to each other they would have been in her salon.
Furthermore, the High Court found that restricting the right to freedom of movement to limit contact with others in order to curtail the risks of spreading the virus was rational. However, it found that to restrict the hours of exercise to a certain time period is completely irrational.
“One need only to think of the irrationality in being allowed to buy a jersey, but not undergarments or open- toed shoes and the criminalization of many of the regulatory measures,” added Judge Davis.
In a statement, Government claims it has taken note of the judgement which was delivered on June 2.
“The court suspended the declaration of invalidity for a period of 14 days. This means that the Alert Level 3 regulations remain in operation for now,” the statement reads.
What are your thoughts on the regulations of Level 4 and Level 3? Do you feel the High Court is justified in ruling that certain of the regulations are irrational? Share your thoughts and views with us in the comment section below?
Read the full ruling here – The High Court of South Africa
