South Africa flag

A court has ruled that South Africa's lockdown measures are "irrational" and "unconstitutional", according to a new judgment delivered on Wednesday.

The South African high court in Pretoria has given the South African government 14 days to alter its "unconstitutional and invalid" COVID-19 related disaster management regulations, the judgment read.

During the period of suspension the current regulations will continue to apply.

The court case followed applications by a voluntary community association known as the Liberty Fighters Network, and a Mr De Beer, attacking the validity of the March declaration of the national state of disaster by the Minister of Cooperative Governance and Traditional Affairs and the lockdown regulations relating to it.

South Africa-based Zehir Omar Attorneys, and Pretoria based Friedland Solomon & Nicholson represented the Liberty Fighters Network, and De Beer represented himself.

Judge Norman Davis ruled that the lockdown measures placed power "to promulgate and direct substantial if not virtually all aspects of everyday life of the people of South Africa in the hands of a single minister" with none of the customary parliamentary, provincial or other oversight functions provided for in the constitution.

He added that the evidence showed that while the objective of the national state of disaster to limit the spread of the virus was commendable, no regard was given to the impact of individual regulations on the constitutional rights of people and whether these limitations were justifiable or not.

In examining the legality of the regulations, he referred to the supremacy of the constitution, which requires that steps are taken to achieve a permissible objective to be "both rational and rationally connected to that objective."

In testing this, the judge first referred to the regulation prohibiting relatives to be with a dying family member while allowing up to 50 people to attend the subsequent funeral.

"The disparity of the situations is not only distressing but irrational," he concluded.

Next he referred to the millions of informal traders, fisheries, shore-forages, street vendors, waste-pickers, hairdressers and the like who have been 'stripped' of their right to earn a living as a result of the lockdown regulations.

He also pointed to the inconsistency in restricting people in need to limited contact with one another, but "being forced to congregate in huge numbers" for days in order to obtain food parcels.

The judge said while some regulations did "pass muster", other examples of irrationality were too numerous to mention.

"One needs only to think of the irrationality of being allowed to buy a jersey but not undergarments or open-toed shoes and the criminalization of many regulatory measures," his judgment read.

During his summing up he made reference to the regulations pertaining to the prohibition on the sale of tobacco and related products being excluded from this ruling pending the finalization of a separate case to be heard in the same court.

Read more

Tobacco Giants Mount Legal Challenge to South Africa's Lockdown Ban