Durban - Constitutional law expert Professor George Devenish says a democratic
government should lead by consent, not
by demand. Even in the most desperate
times of a pandemic, the government
should not take people for granted.
Responding to the Pretoria High Court ruling that declared the level 4 and 3 lockdown regulations unconstitutional, Devenish said people had the right to question government decisions.
Co-operative Governance and Traditional Affairs Minister Nkosazana Dlamini Zuma has 14 days to amend the regulations or challenge the court’s decision after the Liberty Fighters Network’s victory on Tuesday.
The lockdown regulations will still apply in the interim and the ban on cigarette sales was excluded from the order, pending the outcome of the matter.
Judge Norman Davis found that the government had failed to consider the limitations on people’s rights that were brought by the regulations.
Devenish said: “The apartheid government was authoritarian; we cannot accept that now in democracy. The court has risen to the occasion.
"Courts have once again proven that they are the saving grace of this country. The courts must tell the government when it has made a mistake. The ban on things like the sale of cigarettes is unnecessary.
“The Constitutional Court will need to make a decision on this issue.”
Devenish said certain regulations had reduced some people to criminality.
The prohibition on jogging, restriction of movement and the ban on the sale of cigarettes and liquor had forced some to disobey the law.
“As a result of the ban on the sale of liquor, there was illegal selling and brewing of liquor. That was unsatisfactory because illegal brews came with the risk of people getting sick and dying.”
Devenish said he found the government had not thought through the regulation that people could buy a jersey but not a T-shirt, and the prohibition on hairdressing businesses.
R2K campaign deputy national co-ordinator Ghalib Galant said the number of challenges against the lockdown regulations were an indication of how invasive the regulations were on constitutional rights.
A worrying factor was that the 14 days given for the regulations to be amended was around the same time that the State of Disaster period would also end.
“This court decision is breathtaking. The judge used the example of how you could not visit a sick uncle, but could attend his funeral. Where is the logic in that? The manner in which the judgment was tied together is a little loose,” said Galant.
TLU SA, which represents farmers, believes the government should lift all restrictions. TLU SA president Louis Meintjies welcomed the ruling.
He said the lockdown regulations had taken food and jobs from people and damaged the economy.
“We realise the danger of Covid-19, but given that we have no idea how long it will be with us, it is important to maintain a responsible balance in handling the situation,” said Meintjies.