Johannesburg - Cooperative Governance and Traditional Affairs (Cogta) Minister Nkosazana Dlamini Zuma has cried foul over the proceedings of the litigation that resulted in the lockdown regulations being declared invalid and unconstitutional.
Dlamini Zuma’s heads of argument before the Supreme Court of Appeal (SCA) argue that Judge Norman Davis found against Cogta despite the litigants’ submissions being vague and failing to raise arguments attacking the constitutionality of the regulations.
The SCA will hear Dlamini Zuma’s application to appeal Judge Davis’s judgment next month.
The Bloemfontein-based court will have to decide whether Judge Davis applied the rationality test correctly in the matter and also whether the requirements for a valid court order were fulfilled during proceedings.
Dlamini Zuma will argue before the SCA’s Bench that such requirements were not fulfilled, neither was the rationality test applied properly.
“First, the respondents did not plead, or in any event did not properly plead the constitutional attack (that) the high court upheld,” said Dlamini Zuma’s papers.
“They did not raise a rationality attack at all, and the attack based on the Bill of Rights was too vague for the minister to answer.”
Judge Davis delivered his judgment in June last year. Scathing of Cogta and labelling its approach to regulations paternalistic rather than constitutionally justifiable, he ruled in favour of activist Reyno de Beer and his organisation called Liberty Fighters Network.
Judge Davis found most of the regulations implemented to curb the spread of Covid-19 irrational.
He delivered the judgment round about the time people were only permitted to leave their homes for essential services or to buy essential goods.
To demonstrate the irrationality of the regulations, Judge Davis made an example about a hairdresser who was a single mother.
Under the alert level 3 regulations she would not be able to work, but “watch her children go hungry while witnessing minicab taxis pass with passengers in closer proximity to each other than they would have been in her salon”.
But Dlamini Zuma’s papers remonstrated that Judge Davis made findings on issues not pleaded before him.
De Beer’s and his network’s founding affidavit only made “sweeping statements” about the regulations and did not specify why they were unconstitutional, said Dlamini Zuma’s heads of argument.
“There was, in short, no indication in the founding affidavit that the minister was called on to defend the substantive rationality of the regulations or, for that matter, any specific regulations.
“Had the minister known that she was facing a rationality challenge, she would have adduced the evidence relevant and necessary to defeat it.
“The high court nevertheless held the regulations to be irrational, even though this was not the pleaded case. In the circumstances, it was not competent, with respect, for the court to make the orders it did.”
Said De Beer: “The Cogta minister’s continued reliance on ’oh no, I didn’t know what they wanted from me’ is a classic ’playing oblivious’ tactic that the courts shouldn’t dignify with recognition. “The (high) court acted correctly in our view.”
The Star