Soldiers patrol the streets during the lockdown. Judge Norman Davis found some lockdown regulations were ‘irrational’ and ‘invalid’.     Reuters
Soldiers patrol the streets during the lockdown. Judge Norman Davis found some lockdown regulations were ‘irrational’ and ‘invalid’. Reuters

Judge Davis' lockdown ruling shows the beauty of a constitutional democracy

By EDITORIAL Time of article published Jun 4, 2020

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Judge Norman Davis gave voice to millions when he ruled that several of the regulations imposed under the Covid-19 lockdown were “unconstitutional and invalid”. He found that the regulations encroach on and limit the rights guaranteed in the Bill of Rights, and are unjustifiable.

This was the second loss in consecutive days for the government after business organisation Sakeliga on Monday successfully challenged the requirement for essential services providers to be registered with the Commission for Intellectual Property and Companies (CIPC) and to be required to carry permits.

Judge Davis, however, suspended his ruling for two weeks, giving the government time to consider amending the regulations.

However, the current State of Disaster also ends on June 14, which will require its extension by another month, probably with a set of new, amended regulations.

The government will likely challenge Tuesday’s ruling, setting the scene for a showdown over rules, which in many instances appear arbitrary and irrational, however well-intentioned they may be, and which have set the economy back, leaving many at the mercy of social assistance programmes and donor organisations.

Judge Davis cited some of these examples.

While exercise on a promenade is permitted, although only at certain times, people may not set foot on the beach or bathe in it.

While limited numbers of people may travel in the confined space of a taxi, hairdressers and several informal sector workers are still not allowed to operate. Detractors of the regulations say these people may operate safely if certain precautions are taken.

The judge has, rightly so, placed considerable weight on the rights guaranteed in the constitution, and whether the limitation of these was justifiable.

The government argues that the end justifies the means, while Judge Davis says it should have considered how to least inhibit constitutional freedoms while protecting people. And it is this point which we, and subsequent appeals courts, must grapple with.

Nevertheless, the case shows once again the beauty of living in a constitutional democracy, where the judiciary can tell the administration when it may have overstepped its mandate.

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