It was impossible for Co-operative Governance Minister Nkosazana Dlamini-Zuma to defend the lockdown regulations in court — because there was simply no valid attack on them, said court papers filed on Tuesday.
Dlamini-Zuma was urgently applying to appeal the judgment from the Pretoria high court last week that, in one fell swoop, struck down almost the entire lockdown regulatory regime — almost all of the level three and four regulations — as unconstitutional.
. Although the judgment was celebrated by some commentators, it has also been heavily criticised by lawyers as unsustainable in law. The application for leave to appeal to the Supreme Court of Appeal was widely expected.
The application quoted a number of Constitutional Court judgments saying that, when attacking the constitutionality of laws, an applicant had to be clear on which constitutional provision they are saying has been infringed, and why.
Yet the applicants in this case — Reyno de Beer and his organisation, Liberty Fighters Network — had “raised an attack under the Bill of Rights on unidentified regulations, on undisclosed grounds and for unknown reasons”, said the application.
This was not merely a formal defect. “It made it impossible for the minister to know what case to meet,” said the application. This “fundamentally violated her right to a fair hearing”.
The application for leave to appeal also said that when the court struck down the level three regulations, it went beyond what De Beer had brought to court. The case was made and answered during level four — before the level three regulations had been promulgated. “The minister was accordingly never called upon to defend the level three regulations and, indeed, never had an opportunity to do so.”
The application also criticised Davis’s orders for including a “wholesale declaration of invalidity” when he only found a limited number of provisions to be invalid.
The minister has asked for the appeal application to be dealt with urgently: “The regulations drastically affect the lives of all South Africans on a daily basis. If they are in breach of the Constitution, that needs to be determined as a matter of high urgency. If, on the other hand, they are constitutionally compliant and thus valid and binding, that too must be determined without delay.”
In his judgment, Pretoria high court Judge Norman Davis held that each and every regulation under the Disaster Management Act had to be both rational in law and justifiable under the Constitution.
But, he said, the evidence before him — an affidavit from the co-operative governance and traditional affairs director-general on behalf of the minister — did not show that Dlamini-Zuma had considered each of the regulations individually in terms of their constitutionality.
The government had to look at “every instance” in which rights were being encroached on and inquire whether the encroachment was justifiable, Davis found. “Without conducting such an inquiry, the enforcement of such means, even in a bona fide attempt to attain a legitimate end, would be arbitrary and unlawful.”
Although some regulations passed constitutional muster, “in an overwhelming number of instances” the regulations had not been justified by Dlamini-Zuma. It was irrational, he found, that people were allowed to attend funerals, yet informal traders, who had less contact with other people on a daily basis than people at a funeral, were not allowed to trade.
He added: “To put it bluntly, it can hardly be argued that it is rational to allow scores of people to run on the promenade, but were one to [set] foot on the beach, it will lead to rampant infection.”