The Cabinet has decided to appeal Tuesday’s Pretoria high court ruling that declared the national state of disaster’s level 3 and 4 regulations “unconstitutional and invalid,” Minister in the Presidency Jackson Mthembu said on Thursday.
In a media briefing following a special virtual Cabinet meeting held on Wednesday, Mthembu said the government will ask for an urgent hearing on the matter “so that it can obtain certainty on the regulations.”
“The Minister of Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini Zuma, will be joined in this appeal by President Cyril Ramaphosa and the Minister of Health, Dr Zweli Mkhize,” he added.
In his ruling, Judge Norman Davis suspended the declaration of invalidity until Dlamini-Zuma reviews, amends and republishes the regulations in consultation with the relevant Ministers.
He gave the Minister 14 days to do so, which meant that the regulations as published under alert level 3 would still have been in force.
The ruling followed 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.
Mthembu said the Cabinet had obtained legal advice and listened to “numerous comments made by members of the legal fraternity.” It subsequently decided that another court might come to a different conclusion.
Interventions ‘aimed at saving lives’
The Minister added, “Cabinet wishes to assure the nation that all interventions introduced since the declaration of a state of national disaster in March 2020 by President Cyril Ramaphosa have been directed primarily at saving lives.
“In implementing these interventions, government has consistently consulted all sectors of society, as the fight against COVID-19 is a national effort that requires unity in action between Government and all South Africans.
“While government appeals the court judgment, current regulations remain in force and we appeal and urge all our people to observe all the health protocols that have been put in place including washing of hands, social distancing, wearing of masks in public as well as screening and referral for testing where necessary.”
A number of legal experts have cast doubt of the strength of the ruling, including former Public Protector Prof Thuli Madonsela.
Writing on Twitter on Tuesday, she said, “There would have been a lot to learn from this judgement if it were more clear, concise, accurate, professionally reasoned and persuasive. I’d be surprised if in its current form it survives the scrutiny of a higher court.”
Constitutional governance expert Pierre de Vos also weighed in on the ruling on his blog on Wednesday. He wrote, “The court’s superficial analysis of the specific regulations and the sweeping nature of the order will probably lead to the judgment being overturned on appeal.”