Judge Norman Davis found that little or no regard was given to the extent of the impact of individual regulations on the constitutional rights of people and whether the extent of limitation of their rights was justifiable or not.
The judgment was handed down on Tuesday following the urgent application brought by the Liberty Fighters Network (LFN) and the Hola Bon Renaissance Foundation.
Davis ordered Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini-Zuma to formulate changes to the regulations within 14 days.
However, the national state of disaster is set to lapse before that deadline.
Here is what the High Court said about the various regulations:
On the attendance of funerals:
Davis said: “When a person, young or old is in the grip of a terminal disease, other than Covid-19 and is slowly leaving this life to ease that suffering and the passing, it is part of the nature of humanity for family and loved ones to support the sufferer.
“One might understand the reluctance to have an influx of visitors should the person at death’s door be inside the doors of a medical facility for fear of the spread of Covid-19, but what if the person is in his or her own home or at the home of a family member or a friend?”
He said once a person has died, up to 50 people “armed with certified copies of death certificates may even cross provincial boarders to attend the funeral of one who has departed and is no longer in need of support. The disparity of the situations is not only distressing but irrational.”
On night vigils being prohibited:
Davis questioned why night vigils were totally banned, saying if one wants to prevent the spreading of the novel coronavirus through close proximity, why not impose time, distance and closed casket prohibitions.
“Why not allow a vigil without the body of the deceased? If long distance travel is allowed albeit under strict limitations, a vigil by a limited number of grieving family under similar limitations can hardly pose a larger threat,” he said.
On hairdressers, waste pickers, street vendors and construction workers:
The High Court Judge said there were millions of South Africans who operate in the informal sector, who have lost their livelihoods.
“Their contact with other people is less on a daily basis than, for example, the attendance of a single funeral. The blanket ban imposed on them as opposed to the imposition of limitations and precautions appear to be irrational.
“In the case of a 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 but must now 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.
“She is stripped of her rights of dignity, equality, to earn a living and to provide for the best interest of her children,” Davis said.
On limitations of exercise:
Davis said limitations on exercises were “equally perplexing”.
“If the laudable objective is not to have large groups of people exercising in close proximity to each other, the regulations should say so rather than prohibit the organising of exercise in an arbitrary fashion.
“To restrict the hours of exercise to arbitrarily determined time periods is completely irrational. On places and premises closed to the public.”
He also added that it can hardly be argued that it is rational to allow scores of people to run on the promenade but “were one to step a foot on the beach, it will lead to a rampant infection”.
“And what about the poor gogo who had to look after four youngsters in a single room shack during the whole lockdown period? She may still not take them to the park, even if they all wear masks and avoid other people altogether.”
On certain clothing items being sold:
The Judge said: “One need only to think of the irrationality in being allowed to buy a jersey but not undergarments or open-toed shoes and the criminalisation of many of the regulation’s measures.”