THE state of national disaster and subsequent seven-week nationwide lockdown declared by President Cyril Ramaphosa has been likened to a state of emergency but without the necessary safeguards provided for in the Constitution. File Image
THE state of national disaster and subsequent seven-week nationwide lockdown declared by President Cyril Ramaphosa has been likened to a state of emergency but without the necessary safeguards provided for in the Constitution. File Image

DA heads to court to challenge 'unconstitutional' lockdown regulations

By LOYISO SIDIMBA Time of article published May 16, 2020

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Cape Town - THE state of national disaster and subsequent seven-week nationwide lockdown declared by President Cyril Ramaphosa has been likened to a state of emergency but without the necessary safeguards provided for in the Constitution.

The DA has asked the North Gauteng High Court to have the regulations promulgated to enforce the national lockdown, which has entered its eighth week, and the government’s restrictions declared unconstitutional, invalid and to be set aside.

The FF Plus has also indicated that it will also urgently approach the High Court to challenge the validity of the Disaster Management Act (DMA) and ask the court to find that the government is abusing the law and that the state of disaster and Covid-19 regulations are unconstitutional.

The official opposition has hauled Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini Zuma and her transport and trade, industry and competition counterparts, Fikile Mbalula and Ebrahim Patel, respectively, to court over regulations promulgated in terms of the DMA.

"The impugned restrictions are unconstitutional and unlawful because they are disproportionate, irrational, unreasonable and an unjustified limitation of fundamental rights. Moreover, they cannot conceivably assist in the fight to limit the spread of Covid-19 and can in many respects only make it worse,” reads DA MP Glynnis Breytenbach’s founding affidavit filed on Thursday.

Breytenbach described the Covid-19 lockdown regulations were an unprecedented restriction of many of the fundamental freedoms that South Africans had previously taken for granted.

The DA wants the regulations issued in terms of the DMA on April 29 declared unconstitutional, invalid and be set aside and the restriction of exercise to between 6am and 9am to be completely removed.

The DA opposes many of the draconian limitations of South Africans’ rights that come at great economic cost and that are unlawful, irrational, unreasonable, disproportionate, ineffective and unconstitutional.

Breytenbach also complained that Dlamini Zuma and Mbalula have failed to respond to a letter from DA federal chairperson Helen Zille asking for reasons for the curfew as well as transport and exercise restrictions.

She said the curfew was unlawful for its unjustifiable limitation of the right to freedom of movement and that the lockdown should not be fundamentally unconstitutional.

"The regime under the Covid-19 regulations resembles a state of emergency but is not subject to the same safeguards,” stated Breytenbach.
According to Breytenbach, South Africans do not know when level 4 of the lockdown will end and that it can go on for months, years or theoretically forever.

She said Dlamini Zuma’s regulation-making power is not subject to parliamentary oversight.

"Had the president instead decided to declare a state of emergency, he would have only been empowered to do so for 21 days. Only the National Assembly could have extended the declaration for an additional three months by simple majority. Thereafter, the National Assembly could extend it for additional three-month periods, but by a 60% majority,” reads the affidavit.

During a state of emergency, Ramaphosa may promulgate emergency regulations but Dlamini Zuma is not required to state when the country will return to normality in terms of the DMA and has not done so in the Covid-19 regulations, according to Breytenbach.

”In short, the regime under level 4 of the Covid-19 regulations resembles a state of emergency in material respects but is not subject to the same safeguards. The Covid-19 regulations, and all of the directions issued under them, may thus be unconstitutional in their entirety,” she added.

Breytenbach said the DA reserves its right to challenge the Covid-19 regulations in separate proceedings on the basis that they are unconstitutional.

Professor Tshepo Madlingozi, director of Wits University’s Centre for Applied Legal Studies, on behalf of nearly two dozen non-governmental organisations, questioned the relaxation of the moratorium on evictions in alert level 4.

The NGOs want the demolition or eviction from their place of residence, regardless of whether it is a formal or informal residence or a farm dwelling, for the duration of alert level 4 not to be allowed.

Political Bureau

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