Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma has filed an application for leave to appeal against a High Court judgment that declared various regulations governing levels 3 and 4 as unconstitutional and invalid.
In the application, her lawyers argued Judge Norman Davis had erred in striking down the disaster regulations on the basis that a number of level 3 regulations were irrational and unconstitutional.
“The appeal will have a reasonable prospect of success,” it says in court papers.
The judgment was handed down last Tuesday following an urgent application brought by the Liberty Fighters Network (LFN) and Hola Bon Renaissance Foundation.
Davis, in his judgment, slammed a number of the regulations, saying besides the specific ones cited, “there are many more instances of sheer irrationality included therein”.
He said the regulations surrounding funerals were “not only distressing, but irrational”.
Davis added 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 the limitation of their rights was justifiable or not.
But, Dlamini-Zuma argues that the applicants did not raise an “irrationality attack against the lockdown regulations generally at all”.
“The applicants accordingly did not raise any valid constitutional attack on the lockdown regulations at all. They did not raise a general irrationality attack. They raised an attack under the Bill of Rights on unidentified regulations.
“The applicants’ failure to raise any valid constitutional attack was not merely a formal defect. It made it impossible for the minister to know what case to meet. She could not defend the rationality of reasonableness of any regulations under attack.”
The court papers stated the application was an attack limited to the disaster regulations up to level 4 regulations, adding it was not aimed at level 3 regulations, which had not yet been promulgated.
“The minister was accordingly never called upon to defend the Level 3 regulations and indeed never had an opportunity to do this.”
Limited regulations identified
The papers said the court held a limited number of provisions of the level 3 regulations were invalid but only identified a number of them.
“The court’s finding that a limited number of Level 3 regulations are unconstitutional did not justify its order striking down all lockdown regulations, including all the Level 3 and 4 regulations,” read the court papers.
Dlamini-Zuma’s lawyers argued the judgment went beyond its pleadings and an appeal against the ruling should be urgently heard and determined by the Supreme Court of Appeal.
“The regulations drastically affect the lives of all South Africans on a daily basis. If they are in breach of the Constitution, that needs to be determined as a matter of high urgency.”