NDZ could still win as lockdown ruling ‘likely to be overturned on appeal’

This week’s high court ruling declaring the national lockdown regulations unconstitutional and invalid has been widely welcomed, but some of the country’s top legal minds – including former public protector Thuli Madonsela – have warned the judgment risks being overturned on appeal.

Last week, Judge Norman Davis heard an urgent challenge to the regulations from rights group Liberty Fighters Network and on Tuesday, he delivered his judgment. Davis identified a handful of regulations which he said “passed muster” but declared the majority unconstitutional and invalid and gave cabinet 14 days to review, amend and republish them.

On Tuesday night, Madonsela tweeted that “there would have been a lot to learn from this judgement if it were more clear, concise, accurate, professionally reasoned and persuasive”.

Madonsela told The Citizen it was an important judgment “and an excellent attempt by the judge to deal with a very complex matter in a very limited timeline”.

“He does raise important points around rationality and some of them, I have raised myself,” she told The Citizen and pointed to Davis’ findings on, for example, the regulations around funerals.

In his judgment, Davis said it was “part of the nature of humanity” to support a loved one who was dying of an illness other than Covid-19.

“Loved ones are, by the lockdown regulations, prohibited from leaving their home to visit if they are not the care-givers of the patient being prepared to limit their numbers and take any prescribed precautions,” he said. “But once the person has passed away, up to 50 people armed with certified copies of death certificates may even cross provincial borders to attend the funeral of one who has departed and is no longer in need of support. The disparity of the situations are not only distressing but irrational.”

“Some of the issues he raises are valid,” Madonsela said, “But there are times where his thinking around what is connected and what is not connected may be flawed … And, sadly, I think if this matter goes on appeal or review, that it’s not likely to stand”.

She pointed to “a lack of specificity” and “generalisation”.

“He gives examples of which regulations he thinks are flawed but then says all of the regulations must go,” she said, “And then without having discussed why, he saves some”.

She reiterated that the judgment raised important issues around social equality and justice.

“But I would be surprised if it was taken to a higher court and was upheld,” she said. “Which is sad because there are kernels of wisdom in this judgment, and kernels of very helpful insights around the importance of government only using the power it has, and the importance of using power for a justified purpose”.

Constitutional law expert Pierre De Vos – in an article on his website, Constitutionally Speaking – also said the judgment raised “important questions about the duty of the government to act rationally and in a transparent manner, and to limit rights as little as possible”.

But De Vos described the court’s analysis of the specific regulations as “superficial” and said the order handed down would likely be overturned on appeal because of its “sweeping nature”.

He said the court could not declare all the regulations unconstitutional and invalid, “as neither level five regulations nor level three regulations were properly placed before the court to consider”.

“The problem is that a court cannot declare invalid a regulation without considering that specific regulation and without testing whether that specific regulation is irrational, or unjustifiably infringes on one or more constitutionally protected right,” he said.

Like Madonsela, he also said the court had identified specific regulations that were irrational and then concluded that all the regulations – bar those mentioned – were irrational and invalid,

“A court cannot declare all regulations to be irrational and invalid because you have concluded that some of them are irrational and invalid.”

Further, De Vos said, the court had not applied the rationality test to some of the regulations correctly nor had it said “which regulations might limit which rights”.

“It just assumed that the regulations limited rights and then declared that these limitations were not justifiable because they were irrational,” he said.

In a statement on Tuesday, government said it had taken note of the judgment and would make a further statement in due course.

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