Co-operative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma has been granted leave to appeal the high court judgment that earlier this month set aside the vast majority of the lockdown regulations due to being unconstitutional.
Judge Norman Davis, in the North Gauteng High Court, on Tuesday found that the minister should be granted leave to appeal against his “blanket” declarations of invalidity – but that certain regulations which he had expressly identified as displaying “a clear lack of rationality and constitutional compliance,” including those around funerals, still needed reviewing.
“In respect of these last mentioned regulations, leave to appeal will be refused and the remaining ten business days left from the original order again commence running,” pointing to the time period government was originally given to remedy the defects in the regulations.
Davis at the beginning of June identified a handful of regulations which he said “passed muster” but declared the majority of the continued lockdown regulations unconstitutional and invalid, and gave cabinet 14 days to review, amend and republish them. This was suspended while the application for leave to appeal was pending.
Advocate Wim Trengove SC, who represented Dlamini-Zuma in her application for leave to appeal, argued that there needed to be more detail around which specific regulations were declared unconstitutional and invalid – and why – in order for the minister to remedy the defects.
He said a finding that some regulations were invalid did not justify an order declaring all of them invalid.
“There are two bases on which leave may be granted, the first is that the appeal will have a reasonable prospect of success. The second is that there are compelling reasons of public interest,” Trengrove said.
In his latest ruling the judge found, however, there was no merit to the state’s argument that a constitutional attack had not been properly raised.
“Yes, the challenges were raised ‘inelegantly,’ in the words of counsel for the initial applicants, but he was at pains to point out that they were drafted by … a lay person,” he said.
The judge similarly found the argument that his order had been “vague,” was without any substance.
“For this court to have prescribed how exactly the regulations must be amended, would improperly have crossed the boundaries of the separation of powers,” he said.
The Liberty Fighters Network, a local NGO, and its president and founder, Reyno De Beer, took Dlamini-Zuma to court earlier this month and had the lockdown regulations set aside.
In his first judgment, Davis was scathing of the regulations.
He found that “little or in fact no regard was given to the extent of the impact of individual regulations on the constitutional rights of people and whether the extent of the limitation of their rights was justifiable or not”.
He did find, however, that a handful of regulations – including those relating to education, prohibitions against evictions and the closures of night clubs and fitness centres – “all appear to be rationally connected to the stated objectives”.
Those regulations were unaffected by his declaration, as were the regulations around the ban on tobacco sales because those were at the time the subject of two separate court challenges. The first, launched by the Fair Trade Independent Tobacco Association, was dismissed last week. The second, in which British American Tobacco South Africa is the applicant, is expected to be heard in August.