High court declares National State of Disaster regulations ‘unconstitutional’

Dlamini-Zuma. Image credit: Twitter/COGTA

The Pretoria high court has declared the National State of Disaster’s level 4 and level 3 regulations “unconstitutional and invalid.”

However, the court suspended the declaration of invalidity until such a time as the Minister of Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini-Zuma, reviews, amends and republishes the regulations in consultation with the relevant Ministers.

Dlamini-Zuma has 14 business days to comply with this order or until such a time the court may allow upon application, Judge Davis J. ruled in a judgement handed down on Tuesday. This means that the regulations as published under alert level 3 still apply.

Cabinet ‘to study judgement’

The ruling follows an application by the Liberty Fighters Network (LFN), a group that “consists of economically oppressed South Africans and lawful residents of all different groups,” according to its website.

Although LFN wanted both the National State of Disaster declaration and its regulations declared unconstitutional, the court only acceded to the latter application.

In a statement issued by Cabinet spokesperson Phumla Williams soon afterwards, the government said it had “taken note” of the judgement. “Cabinet will make a further statement once it has fully studied the judgement,” it added.

Judge Davis slammed the “sheer irrationality” of some of the regulations and ruled that many of them were not consistent with the stated objective of the National State of Disaster declaration.

Key quotes from judgement

“Loved ones are by the lockdown regulations prohibited from leaving their home to visit [a patient] if they are not the caregivers of the patient … but once the person has passed away, up to 50 people armed with death certificates may even cross provincial borders to attend the funeral…”

“…in the case of hairdressers, a single mother and sole provider for her family may have been prepared to comply with all the preventative measures proposed in the alert level 3 regulations, but must now watch her children go hungry while witnessing minibus taxis pass with passengers in closer proximity with each other than they would have been in her salon.”

“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.”

“Similarly, to put it bluntly, it can hardly be argued that it can be 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.”

“The practicalities (or rather impracticalities) of distributing aid relief in the form of food parcels highlights yet another absurdity: a whole community might have had limited contact with one another and then only in passing on the way to school of places of employment on any given day prior to the regulations, but are now forced to congregate in huge numbers, sometimes for days, in order to obtain food which they would otherwise have prepared or acquired for themselves.”

To read the full judgement on saflii.org.za, click here.

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