Do ‘unconstitutional’ lockdown regulations still apply in South Africa?

South Africans from all walks of life are confused about many of the country’s lockdown regulations.

According to attorney Mthokozisi Maphumulo, a recent court finding on the constitutionality of the country’s lockdown regulations and the upcoming appeal lies at the heart of the confusion.

READ MORE: Cogta allowed to appeal portions of lockdown unconstitutionality finding

Maphumulo spoke to Caxton Local Media and provided some insights.

On June 2, the Pretoria North High Court declared level 3 and 4 lockdown regulations unconstitutional and invalid. Judge Norman Davis gave government a window period of two weeks to fix the problem. In a subsequent judgment a month later, this period was extended. The extended deadline has since passed.

FAQ: Cogta has not amended all lockdown regulations within the prescribed period. Does this mean that the lockdown regulations are no longer valid?

Maphumulo replies:

Though not in its entirety, Davis acknowledged in his judgment that South Africa’s lockdown rules may have since been amended and “corrected” to an extent.

“The invalidity suspension is still in force as the court specifically stated that such suspension will remain until the Minister amends/reviews the regulations. (The judgment) does not explicate what will be the ramification of failure on the part of the Minister to amend/review the Regulations. Failure to comply with the order means the Minister is in contempt of court and, as such, can be compelled to comply with the order and that will bring about certainty in this regard.”

FAQ: In his most recent judgment, Davis indicated that only a portion of his June 2 judgment may be appealed. Does this mean that the bulk of the regulations he declared invalid no longer apply?

Among the findings of invalidity that may not be appealed were Davis’s ruling with regards to:

• Regulation 33(1)(e) dealing with exercise curfews.
• Regulation 34 dealing with the movement of children.
• Regulation 35 dealing with funerals.
• Regulation 39(2)(m) dealing with access to beaches.

Maphumulo replies:

“In practice people breaking the “invalid” regulations have been arrested. This indicates that the said regulations remain in force. To bring about absolute certainty, it would be ideal for the appeal court to consider regulations in their entirety, considering the significance of clarity herein.”

The regulations pertaining to funerals make for an illustrative example.

Davis’s first ruling and funerals

One specific unresolved issue is that of funerals. Since March, when President Cyril Ramaphosa declared a state of disaster and announced that our movements would be severely curtailed through lockdown regulations, strict rules have applied, including:

• Funerals may not be attended by more than 50 people;
• Vigils were banned;
• Only certain people would be allowed to attend the funeral of a loved one.

“In his (June 2) judgment, Judge Davis declared Regulation 35 irrational and invalid as the regulations did not allow family and friends to visit a person who was on the verge of dying, yet (the regulations) permitted 50 people to attend the funeral of the same person when s/he had died and no longer needed their support,” says Maphumulo.

“The court also heavily criticised the total ban on vigils. According to the court, the government could impose less severe restrictions and regulate the vigils differently – in a manner that would not greatly make inroads to basic human rights.”

Davis’s second ruling and funerals

In the more recent judgment, Davis said that his finding on Regulation 35 will not be appealable.

“The legal position is that, had the appeal been granted on Regulation 35, the initial judgement would have been suspended (no effect),” says Maphumulo.

However, he reiterated that in his opinion, the invalidity suspension remained in force. He concluded that, hopefully, the courts would provide clarity soon.

Click here to access the judgment Dlamini-Zuma wants to appeal.

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