Cogta allowed to appeal portions of lockdown unconstitutionality finding

Co-operative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma will be allowed to appeal a portion of the Pretoria High Court’s June 2 judgment that declared many lockdown level 4 and 3 regulations unconstitutional. This was decided by Judge Norman Davis yesterday.

Caxton Local Media previously reported that, following an application by the Liberty Fighters Network and Reyno de Beer, Judge Norman Davis labelled specific regulations as invalid. Certain regulations, such as those that ban smoking, were not addressed in his June 2 judgment.

The judgment Dlamini-Zuma wants to appeal:

He also ordered that the totality of the regulations (save for certain exceptions – click here for more) had to be reviewed and amended to ensure constitutional justifiability.

According to Dlamini-Zuma, the June 2 judgment did not provide enough clarity on which regulations had to be amended and how this was to be done.

“It should be a simple exercise to review the list of regulations, remove the irrationalities, and amend and republish the regulations. I fail to see how this issue can be dealt with differently on appeal,” Davis said in his judgment yesterday.

Davis also rejected three other arguments in favour of an appeal. These arguments alleged that the applicants’ constitutional attack on the regulations was not precise enough, that level 3 regulations should not have been included in his judgment, and that Davis’ striking of unspecified regulations was unfair.

His judgment held that an executive who imposes any rule that limits human rights, should be able to justify that rule. This was the approach he sought from Dlamini-Zuma instead of the expectation that the court should point out the constitutional flaw in each rule.

Although the above arguments were rejected, Davis acknowledged that the changing factual landscape we found ourselves in, motivated his granting of leave to appeal.

South Africans were faced with major confusion during the month of June. South Africa’s lockdown regulations were amended more than twice. Hosts of directions have been updated, again changing the regulatory landscape. This, Davis noted, had improved upon the constitutionality of the regulations. Dlamini-Zuma, however, never indicated whether this was the intention of the amendments.

Davis concluded that the pending leave to appeal application had extended the initial grace period of 14 days during which the government had to revisit its lockdown regulations. Cogta now has ten more days to ensure that its house is in order.

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