NDZ’s legal battle could affect these lockdown rules

Cooperative governance and traditional affairs (Cogta) Minister Nkosazana Dlamini-Zuma this week achieved partial success with her application for leave to appeal Judge Norman Davis’ June ruling, declaring the lockdown regulations invalid.

Davis on Tuesday granted her leave to appeal his “blanket” declaration to the Supreme Court of Appeal but he refused it in respect of specific regulations that he had “expressly identified” as displaying “a clear lack of rationality and constitutional compliance”.

The judge originally gave Dlamini-Zuma 14 business days to bring the regulations up to scratch but this was suspended four days later when the minister launched her application for leave to appeal. On Tuesday, he set the clock running again in respect of the identified regulations and said Dlamini-Zuma now had ten business days to remedy them.

Constitutional law expert Paul Hoffman on Wednesday explained that the minister could now petition the SCA to also hear an appeal on Davis’ findings in respect of these regulations and that if she did, the deadline would be suspended again.

If she chooses not to, however, these are some the regulations which would fall to be either amended or scrapped in the coming weeks:

Some of the regulations which have left Judge Norman Davis scratching his head, and which may have to change. Graphic: Costa Makola

Exercise

In terms of the alert Level 3 regulations, outdoor exercise is allowed between 6am and 6pm.

The minister recently gazetted an amendment which allows for group exercise so long as it is not done in groups of more than four.

But in his original judgment, Davis labelled the limitations on exercise – specifically restricting it to certain times – “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. Restricting the right to freedom of movement in order to limit contact with others in order to curtail the risks of spreading the virus is rational, but to restrict the hours of exercise to arbitrarily determined time periods is completely irrational.”

Children

Under alert Level 3, the movement of children between parents and/or caregivers in the same province is allowed, subject to there being either a court order or formal agreement in place or a permit being secured.

Davis found these placed “irrational obstacles in the way of those responsible for children or in the position of caregivers of children to see that their best interests are catered for”.

Funerals

Although the ban on night vigils was recently lifted, funeral attendance remains heavily restricted under alert Level 3 and only spouses, children, grandchildren, children-in-law, parents and grandparents of a deceased are currently allowed to cross provincial or metropolitan borders to attend an individual’s funeral.

Davis found there was “no rational connection to the stated objectives for the limitation on the degree of the familial relationship to a deceased in order to permissibly attend his or her funeral”.

Beaches and public parks

Beaches and public parks remain closed under alert Level 3 but Davis found this, too, was irrational.

“To put it bluntly, 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 rampant infection,” he said.

“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.”

Some of the regulations which Davis identified – such as those that continued to exclude, for example, hairdressers – have since his initial judgment been amended and so his findings thereon have now become moot to a degree.

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