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Why the High Court declared regulations unlawful

Published Jun 3, 2020

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CAPE TOWN- The South African government has two weeks to review, amend and republish the majority of the regulations applicable during alert levels 4 and 3 of the national lockdown

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but what precisely are the legal grounds which led the Court to find such regulations to be unconstitutional?

On Tuesday the Pretoria High Court handed down its

judgment in which it ordered the Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini-Zuma to make changes to the regulations within 14 days.

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The current alert level 3 regulations will however remain in operation during this period.

Applicants in the judgment include Tshwane-based Liberty Fighters Network’s (LFN) and LFN president Reyno de Beer. The applicants argued that government had imposed the regulations based on incorrect advice and had not considered the country’s socio-economic conditions.

The legal grounds for finding the regulations unlawful

The overarching conclusion of the judgment is that some of the regulations of levels 4 and 3 are not rationally connected to the objectives of slowing the rate of infections.

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The judgment tests the “rationality” of some of the regulations by considering whether or not there is a rational connection between the intervention, on the one hand, and the purpose or intended outcome for which it was taken.

Various real-life scenarios are considered by the court in the judgment which concludes that a “blanket ban” imposed on all people is irrational. Judge Davis draws on the example of how the regulations have negatively affected millions of South Africans in the informal sector, including traders, construction workers, street vendors and hairdressers.

The Court found that all businesses, services and shops should be allowed to operate and that all gatherings should be declared lawful, subject to certain conditions and precautionary measures which include wearing a mask and using hand sanitizer.

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In his ruling, Judge Davis found that the regulations unlawfully limits the rights of citizens which are guaranteed in the Bill of Rights contained in the Constitution. The majority of the regulations are not justifiable in an open democratic society based on human dignity, equality and freedom as contemplated in Section 26 of the Constitution.

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