“There are numerous, thousands, no, millions of South Africans who operate in the informal sector. There are traders, fisheries, shoe-foragers, construction workers, street-vendors, waste-pickers, hairdressers and the like who lost their livelihood.” – Judge Norman Davis.
South Africans are suffering as a result of the strict and, according to some, draconian, lockdown regulations implemented by government in an attempt to curb the spread of Covid-19.
Yesterday the Pretoria High Court found that the extent to which the basic human rights of South Africans are infringed by these regulations cannot be justified. Judge Davis declared the regulations unconstitutional and gave the Minister of Cooperative Governance and Traditional Affairs two weeks to amend it. Meanwhile, residents will remain bound by the level 3 regulations.
Also Read: Court finds lockdown regulations unconstitutional
Davis referred to section 36 of the Constitution, the section that indicates when the human rights violations imposed by law will be justifiable. He used the phrase “the ends should justify the means.”
Constitutional law expert Dr Pierre de Vos has since indicated that the outcome can be successfully appealed.
“In short, there is a fundamental difference between merely requiring that the end justifies the means (or indeed, that the means justifies the end), on the one hand, and requiring that the means be rationally related to the ends sought to be achieved, on the other,” he wrote in his blog, Constitutionally Speaking.
De Vos added that, when declaring a regulation invalid, a court must consider that specific regulation. Each individual and specific regulation’s validity must be tested to determine whether it is rational or not. De Vos indicated that the court had not done so.
The applicants, the Liberty Fighters Network and Reyno de Beer, could not be reached for comment.
Click here to read his blog on the judgment.
That said, he agreed with the general principles set out by the court.
Regardless of the legal technicalities involved, millions of South Africans feel that the restrictions imposed over the last two months could not be justified. They have lost their income. Many have no money for food.
South Africans have been stripped of their rights to dignity, equality and the right to earn a living. When Davis elaborated on this, he considered everyday South Africans and their losses.
This video explains the judgment in everyday English:
Unconstitutional Lockdown Regulation Judgment Unpacked: Although legal experts believe that an appeal could succeed, everyday South Africans felt ‘heard’ for the first time in a long time.
Posted by Helene Eloff on Wednesday, June 3, 2020
Many legal experts agree with De Vos and are of the view that the judgment could be successfully appealed. Cabinet has not yet indicated whether this route will be taken.
Also read: Lockdown regulations found unconstitutional, except for smoking ban
Eloff is an admitted attorney and legal advisor of CTP Limited.
