South African High Court Holds Lockdown Regulations to be Unconstitutional

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The South African High Court of Pretoria held the lockdown restrictions by the South African government to be invalid and unconstitutional. The decision came in the light of the restrictions being unreasonable and arbitrary.

Background 

The main parties to this suit are the government and Liberty Fighters Network. South Africa had put down strong lockdown restrictions to curb the country’s rising Covid-19 cases. The disaster management Act Regulations, has many levels of restriction. The level 3 and the level 4 restrictions were the most disputed. The government also passed an ordinance to enforce the level 3 lockdown from June 10, 2020.

The restrictions included ban of tobacco and alcohol. There were restrictions on the sale of cooked food and also certain type of clothing. Taking into consideration all these rules, many claimed these to be arbitrary and unreasonable.

Analysis of the Argument

The Court describes the government’s approach to be paternalistic and hence not acceptable. The Court has not pondered into the constitutionality of the regulations. The aspect of extreme circumstances like that of the pandemic is not also adequately considered by the court. There are conflicting rights of that of the individuals and the public at large. But the Court held the regulations to be unconstitutional based on limitations to the bill of rights. The government’s purpose of securing public health has been overlooked.

The government also raised concerns about the concept of rule of law and the doctrine of separation of powers. The counsels on behalf of the government argued to consider the ongoing pandemic crisis while evaluating the rights infringement. 

Observation by the Court 

Judge Norman Davis observed that it was wrong that the guidelines overlooked basic aspects of livelihood of the people. The regulations allowed for the funerals to take place but restricted street trading as a part of livelihood. 

The Court has expressed its view that the restrictions are unconstitutional due to infringement of the bill of rights. But the Court also directed the government to check if there have been any infringements. This causes a state of confusion in what the Court means in truth.

The Court used the rationality test to deem the restrictions to be invalid. The rationality test is to determine the sound connection between the decision of the government, the means to achieve this and also the purpose of the decision. The Court observed this test to not be fulfilled by the government. Justice Davis put down in the judgement irrational priority of funerals over livelihood. But this claim did not have any evidential back up to it. 

Action by the Court 

The High Court of Pretoria held that the restrictions put down are not connected to flattening of the curve. It then proceeded to look into each of the rights violations. Article 172(1) of the South African constitution empowers the Court to declare any law or conduct inconsistent with the constitution to be invalid. Under the same article, the Court can also make another order in place of the older. The power for a remedy action was handed back to the minister keeping in mind the separation of powers enshrined in the South African Constitution. The government was given 14 days to overhaul the present regulations. Thus, the lockdown regulations are held to be unconstitutional.

Implication of the ruling 

The police have lodged hundreds of cases against the lockdown regulation violators. There are wide spread speculation on the validity of the violations after this judgement. There have been violations recorded by the police which included petty issues like the length of one’s shirt. The accused have had to pay fines to the government for their violations. A period of two weeks has is given to the government to solve this commotion. This means that the government will have to do major rewrite of the rules which also creates an atmosphere of uncertainty in the country.

Taking into consideration the current status of the country’s growing Covid-19 cases, the government might file for appeal.


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