Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma.
- Nkosazana Dlamini-Zuma has asked the SCA for leave to appeal Judge Norman Davis’ ruling, which declared six lockdown regulations irrational.
- She stated that these regulations weren’t even in existence when the court heard the matter.
- She will also appeal the blanket ruling, which declared lockdown regulations unconstitutional and invalid.
“Radical error”, “overreach”, “inexplicably” are some of the words used in Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini-Zuma’s approach to the Supreme Court of Appeal (SCA).
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She is applying for leave to appeal the ruling which declared six of the alert Level 3 regulations invalid, even though these regulations were not in existence when the court heard the matter.
These include the regulations pertaining to the limiting of exercise, funerals, the closure of beaches and public parks, and the declaration of the contravention of certain disaster regulations a criminal offence.
In what was regarded as a bombshell ruling, Gauteng High Court Judge Norman Davis on 2 June granted the Liberty Fighters Network’s (LFN) application to declare the regulations unconstitutional and, therefore, invalid.
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Dlamini-Zuma sought leave to appeal from the high court.
On 30 June, Judge Davis granted her leave to appeal, but only for the “blanket” declaration of invalidity of the regulations governing the lockdown.
He ordered that she had 10 days in which to amend six regulations, which the court found to be irrational.
Dlamini-Zuma is now asking the SCA to allow her to appeal the ruling regarding the six regulations, while she indicated that she will also lodge her appeal on the blanket declaration of invalidity.
In her papers, Dlamini-Zuma says there is a reasonable prospect the SCA could find the high court erred, based on the following:
- The LFN failed to raise a valid constitutional attack;
- The high court strayed beyond the pleadings;
- The Level 3 regulations were not placed before the court at the time of the hearing;
- The high court’s rationality assessment of the six regulations were flawed;
- The wholesale declaration of invalidity was not justified; and
- The high court’s orders are unduly vague.
“The first, and most fundamental, error by the high court is that it finds that the Level 3 regulations are unconstitutional. The court makes this finding even though these regulations were not yet promulgated when the court heard the matter,” reads Dlamini-Zuma’s papers.
“Inexplicably, the court made recommendations that were yet to come into existence. On the basis of this radical error alone, the high court order falls to be set aside.”
She said LFN’s founding affidavit contained “sweeping statements” on the disaster regulations’ constitutionality.
“It did not identify the regulations at which it was aimed or specify the grounds on which they were attacked. As a consequence of the respondents’ failure to plead the constitutional attack with any degree of specificity, I was deprived of the opportunity to meaningfully respond to it,” reads her affidavit.
Overreach
Dlamini-Zuma says an example of the ruling’s “overreach” is that the court effectively struck down the offence for evicting a person from their land or home during the alert Level 3 period, without ever considering the rationality of the prohibition on evictions during the state of national disaster.
“Another example is that the court has effectively struck down the offence of consuming alcohol at the place of sale, without any consideration at all of the rationality of the prohibition and the implications for enforcement.”
She said if those specific questions raised by the court had been pleaded, she would have been able to explain why they were justified.
“I have done so in separate litigation challenging the disaster regulations, where the validity of the regulations was upheld.”
Dlamini-Zuma is also asking the SCA to deal with the matter urgently.
“There are, for obvious reasons, compelling considerations of high public interest that an appeal against this judgment be urgently heard and determined by this court.
“The disaster regulations, including the six regulations, drastically affect the lives of 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.
“The judgment has sown confusion among the public as to the validity of the regulations, and has created the impression of a ‘constitutional crisis’.
“This is undesirable, given the importance of compliance with the regulations in the face of the persistent threat posed by the Covid-19 pandemic.”
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