Judgement will be given today deciding whether an Emergency regulation, on which the state has been relying heavily to boost the turnout in the October elections, is valid. The application was brought by the Natal Indian Congress in the Durban Supreme Court against the state president, the ministers of home affairs and law and order, and the commissioner of police.
The NIC challenge also tests the effective banning of the United Democratic Front. The NIC said they wanted to call for a boycott of next month's municipal elections but the regulations prevented them from doing so. They asked that prohibitions on publishing such calls be set aside. Argument on behalf of the NIC was affected by a new Appeal Court judgement handed down just hours before the NIC case was heard.
The Appellate Division ruled that even if a regulation was vague, the court could not intervene to set it aside. This was one of the grounds the NIC was to have used in its challenge: that the regulations were ultra vires – beyond the power of the state president to have made them – because they were so vague that no precise meaning could be put on them.
While the new judgement forced the NIC to abandon this line of argument, Ismail Mahomed SC attacked the regulations on other grounds, one of which was to claim that the regulations were so unreasonable that they could not have been contemplated by parliament and so were ultra vires. However, in reply yesterday, lawyers for the state argued that, following the AD judgement, a regulation could not be set aside even on these grounds.
Mr Justice David Friedman reserved his judgement until this morning. The AD decision which he will have to consider in making his ruling on the NIC application, concerned two judgements of the Natal Supreme Court given last year. The first set aside the prohibition on media coverage of unrest. The second, which followed soon afterwards, ruled the prohibition on calls and "symbolic action" for the release of detainees was invalid. These two judgements were set aside partly on the grounds that they were ultra vires because they were vague, a legal argument accepted in the past as grounds to set aside regulations.
Under the Public Safety Act which gives the state president the power to make Emergency regulations, a regulation can only be considered and set aside by a court if it is ultra vires. Previously the courts have set aside regulations found to be vague, on the grounds that if a regulation is vague it is ultra vires, since the state president is not empowered to make vague regulations.
However, in the latest decision, the AD has adopted a different approach, holding that if a regulation is vague this does not mean it is ultra vires since, according to the AD, vagueness is a separate ground of attack and is not part of the doctrine of ultra vires. The AD further held that the Public Safety Act allows the court to consider challenges to regulations only on other, more limited grounds than vagueness. This decision was handed down on Tuesday.
However, news of the decision has already caused despondency among civil rights lawyers as it severely cuts the grounds on which challenges to Emergency regulations may be made. Natal University law professor Tony Mathews said the ruling removed from court scrutiny a "vast area" of Emergency legislation. He described it as "an abdication by the court, which need not have happened.
This article originally appeared in the Weekly Mail.