Members of the SANDF, Metro Police and the SAPS patrolling Alexandra township as it is notorious of its none-compliance behaviour during the national lockdown. Picture: Oupa Mokoena/African News Agency (ANA)
Members of the SANDF, Metro Police and the SAPS patrolling Alexandra township as it is notorious of its none-compliance behaviour during the national lockdown. Picture: Oupa Mokoena/African News Agency (ANA)

Arguments over constitutionality of lockdown regulations back in court

By Bongani Nkosi Time of article published May 27, 2021

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Johannesburg - In a glaring shift ,the Council for the Advancement of the South African Constitution (Casac) joined forces with the government to tear into the high court ruling that declared the lockdown regulations invalid and unconstitutional.

Casac, as amicus curiae, and Co-operative Governance and Traditional Affairs (Cogta) Minister Nkosazana Dlamini Zuma’s counsels ventured into scathing attacks at the Supreme Court of Appeal (SCA) against Judge Norman Davis’s judgment.

Casac is one of civil society organisations with a track record of squaring off with the government in court.

In his judgment delivered at the Pretoria Court in June last year, Judge Davis found most of the regulations implemented to curb the spread of Covid-19 irrational.

Scathing of Cogta, and labelling its approach to regulations as paternalistic rather than constitutionally justifiable, he ruled in favour of activist Reyno de Beer and his organisation called Liberty Fighters Network.

Judge Davis also found the lockdown regulations to have encroached on the Bill of Rights.

Wim Trengove SC, representing Dlamini Zuma, argued before the SCA Bench on Wednesday that Judge Davis’s judgment was fundamentally flawed. His grounds for this argument included that Judge Davis pronounced on how the lockdown regulations violated the Bill of Rights despite there being no coherent pleadings before him.

Trengove said De Beer failed to plead coherently how the regulations infringed on the Bill of Rights, but Judge Davis found in his favour.

“It’s ironic that the learned judge seems to uphold a Bill of Rights attack purely on the basis of the absence of evidence on justification under the Bill of Rights,” Trengove said.

“But there is absence of evidence on the issue because the issue was never coherently pleaded. The absence of evidence is a symptom of the fact that there is no coherent Bill of Rights attack pleaded at all.”

He insisted that the case should not be taken to be about whether Dlamini Zuma carried out a Bill of Rights audit before promulgating regulations, as she was required to do.

“A wise minister would always of course do a Bill of Rights audit before issuing regulations. But the issue before the court is not a process issue,” said Trengove.

“The issue before the court is … whether the regulations comply with the Bill of Rights or not. There was never a course of action pleaded to the effect that they violated the Bill of Rights in specified respects. We submit, with respect, that the judgment was fundamentally flawed because no attacks were pleaded.”

Geoff Budlender SC, appearing for Casac, compared Judge Davis’s judgment to an exercise in which a court goes out to “anxiously” search for reasons to overturn administrative action.

“The judgment of the High Court unfortunately actually undermined the role of the courts in holding power to account,” said Budlender. “This is a case of true judicial overreach, which undermines the function of the courts.”

De Beer refused to participate in the proceedings because they were proceeding virtually. He insisted that the law stipulated that matters should be heard in an open, physical court.

Judgment was reserved.

The Star

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