Judge Norman Davis addressed the Minister of Cooperative Governance and Traditional Affairs, Dr. Nkosazana Dlamini-Zuma, given 10 days to change the level 3 regulations.
Davis also granted Dlamini-Zuma leave to appeal against his ruling, which set aside the vast majority of the current Level 3 regulations under the Disaster Management Act because it is unconstitutional.
The Liberty Fighters Network and its president and founder, Reyno de Beer, took Dlamini-Zuma to court and Davis ruled in the organization’s favor on June 2.
The minister was then given 14 days to amend the regulations, but she ignored the court order and, in addition, applied late to appeal the ruling. The application was granted yesterday.
However, according to yesterday’s ruling, certain regulations that show a clear lack of rationality and constitutional compliance, including those around burials, still need to be reviewed within ten days.
Adv. Wim Trengove SC, who represented Dlamini-Zuma in her application for leave to appeal, argued that to rectify this, more details were needed about and the reasons why the specific regulations were declared unconstitutional and invalid.
He claimed that the finding that some regulations were invalid did not justify the order that all were invalid.
However, Davis found that the argument that his order was “vague” is devoid of substance. “If this court had prescribed how precisely the regulations should be amended, it would have improperly crossed the boundaries of the separation of powers,” he said.
In his original judgment, the judge made it clear that he was scoffing at the regulations and found that there was little or no regard for the extent of the impact it had on the constitutional rights of the people.
Contrary to Davis’s ruling, the Western Cape High Court ruled last Friday that the regulations were justified and that the courts could not prescribe to the government how to handle a national disaster.
The application, which asked that the court invalidate the containment regulations and declared the National Coronavirus Command Board (NCCC) unconstitutional, was filed last month by Mpiyakhe Dlamini, Duwayne Esau, Tami Jackson, Lindo Khuzwayo, Mikhail Manuel, Neo Mkwane, Scott Roberts and Riaan Sage brought.
The respondents were Dlamini-Zuma, pres. Cyril Ramaphosa, Minister of Trade and Industry, Ebrahim Patel, NCCC, and Disaster Management Center.
Judges Rosheni Allie and Elizabeth Baartman said in the 83-page ruling that they were satisfied that the regulations were justified.
“It is accepted that the measures do not satisfy everyone and that many criticisms have been made against them,” the statement says. “However, it must be weighed against the urgent objective and primary constitutional duty to save lives. It is not the place of the courts to prescribe to the government how to exercise its mandate in such circumstances, ”the ruling reads.
Adv. John Welch of the Gauteng Association of Advocates says that in South Africa the decisions of a provincial higher court must be followed by all the courts in the province concerned. Other provincial divisions are not bound by it, but it does have great persuasiveness.
However, if it is a judgment of the Constitutional Court or the Supreme Court of Appeal, all courts are bound by it.
“I would think the Western Cape High Court should have taken more note of the Gauteng ruling,” Welch says. “However, since there are now two contradictory rulings, both based on legal points, at least one of the cases should be appealed to a higher court, as is the case now.”
Adv. Hendrik P van Staden of the National Bar Council of South Africa says a problem arises when two higher courts come to two different conclusions on basically the same matter. “This raises the question of whether the courts are really independent and whether the same judgment is equally applied in all the courts.”
He says technically the Level 3 rules would be unconstitutional retroactively if the state again fails to change the regulations within the prescribed ten days.