An urgent application was launched in the Gauteng High Court to challenge the constitutionality of the national lockdown and the regulations promulgated in respect thereof.
In his judgment, Judge Norman Davis, considered the regulations in the light of whether it is rationally connected to the stated objective of limiting and preventing the spread of COVID-19, and whether the constitutional rights of South Africans are justifiably limited in terms of Section 36 of the Constitution.
The regulations considered and scrutinised by the court includes the following:  regulation 35 (Attendance of funerals); regulation 35(1) (Attendance of funerals – movement between provinces, metropolitans, and districts); regulation 35(3) and 48(2) (Prohibition of night vigils and the criminalisation thereof); Table 2, exclusion number 7 (Personal care services, such as hairdressing); regulation 34 (Movement of children); regulation 33(a)(e) (Movement in respect of performance of permitted services under Level 3 and the limitation of time 06h00 – 18h00); and regulation 39(m) (Prohibition in respect of beaches and public parks).
The court found the abovementioned regulations to be irrationally connected to preventing and limiting the spread of COVID-19 and that their encroachment on and limitation of rights guaranteed in the Bill of Rights contained in the Constitution are not justifiable in an open and democratic society based on human dignity, equality and freedom as contemplated in Section 36 of the Constitution. One example of irrationality made by the court reads as follows …“If one has regard to some of the public platforms to which I have been referred to, the examples are too numerous to mention.  One need only to think of the irrationality in being allowed to buy a jersey but not undergarments or open- toed shoes and the criminalization of many of the regulatory measures”
The court therefore made the following ruling:

  • The Minister’s declaration of a State of Disaster (lockdown) is found to be constitutional and valid;
  • The regulations promulgated by the Minister in respect of Level 4 is unconstitutional and invalid;
  • The regulations in respect of Level 3 is unconstitutional and invalid except for regulation 36 (Prohibition on evictions); regulation 38 (Prohibition on initiation practices); regulation 39(2)(d) and (e) (Places and premises normally closed to the public, namely night clubs and casinos); and regulation 41 (Closure of borders);
  • The regulations pertaining to the prohibition on the sale of tobacco and related products is excluded from this order and is to be decided on a later date.

The court suspended the declaration of invalidity for 14 days in order for the Minister, in consultation with Cabinet, to review, amend and re-publish the regulations, meaning that Level 3 regulations remain in operation for now and should still be adhered to.
Appeal by State
The Cabinet has decided to appeal Judge Davis’ decision and is of the view that another court might come to a different conclusion. The State will request the appeal to be heard on an urgent basis in order to obtain clarity on the regulations.
In the appeal application the Minister of Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini Zuma, will be joined by President Cyril Ramaphosa and the Minister of Health, Zweli Mkhize.
The consequences of the judgment as it stands, and if not successful on appeal by the State, could mean that certain businesses and individuals may have a claim for damages against the State.
Author: Monique Botha