Whether or not Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma will get another chance to defend the lockdown regulations in court, is now in the hands of a full bench of the High Court in Pretoria.
Dlamini-Zuma’s application for leave to appeal Judge Norman Davis’ ruling from earlier this month – declaring the regulations unconstitutional and invalid – was heard in the High Court in Pretoria on Wednesday morning, with judgment reserved.
Advocate Wim Trengove SC, who represented Dlamini-Zuma in court, 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 further.
And he charged that in this case, there was significant public interest.
But Advocate Reg Willis SC – on behalf of the Liberty Fighters Network, the NGO that brought the case against Dlamini-Zuma – argued leave should not be granted.
He said the regulations “simply won’t survive an ultimate re-hearing of the matter” and that, on the facts, it was “not a case where it’s compelling that one or another part of the judgment needs to be unravelled in this way”.
“There’s simply no defence that’s raised. The problem here ultimately is a deficiency in the state’s case,” Willis said.
He said if the court accepted the challenge to the regulations was a “full-frontal attack”, then it did not have to list each and every regulation that was declared invalid.
Reyno De Beer, of the Liberty Fighters Network, also addressed the court briefly yesterday.
“Who is most affected by this judgment? It’s the ordinary people in the street,” he said.
Responding to arguments that the regulations had hit the poorest of the poor the hardest, Trengrove said, though, that government was “acting in defence of the poor”.
In his 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”.
The judge identified a number of instances of irrationality in the regulations but said the examples were “too numerous to mention” and declared all but a handful unconstitutional and invalid.
“The cautionary regulations relating to education, prohibitions against evictions, initiation practices and the closures of night clubs and fitness centres, for example as well as the closure of borders all appear to be rationally connected to the stated objectives,” Davis said.
Those regulations were unaffected by the order he handed down, as were the regulations around the ban on tobacco sales because those are the subject of a separate court challenge.