Late yesterday afternoon court papers from the Pretoria High Court were sent to Hypertext regarding the regulations promulgated by Minister of Cooperation and Traditional Affairs in terms of section 27(2) of the Disaster Management Act 57 of 2002.

Those papers penned by Judge Norman Davis state that the regulations declared under the legislation highlighted above, are unconstitutional and invalid.

The judge has ordered the Minister (in this case Nkosazana Dlamini-Zuma) to amend the regulations and has been given 14 business days to do so. The minister has also been ordered to pay costs to the first and second applicants who are Reyno Dawid De Beer and the Liberty Fighters Network.

The rather exhaustive court order totaling 34 pages can be read below.

The only regulations Davis did not take issue with were regulations regarding evictions, the prohibition of initiation schools, the closure of public spaces such as gyms, night clubs and casinos and the closure of borders.

The judge goes on to highlight how some regulations don’t stand up to what he calls “the rationality test”. For instance, the judge uses an example of a hairdresser coming into less contact with people than they would if they were in a taxi.

“A single mother and sole provider for her family may have been prepared to comply with all the preventative measures proposed in the draft Alert Level 3 regulation but must now watch her children go hungry while witnessing minicab taxis pass with passengers in closer proximity to each other than they would have been in her salon. She is stripped of her rights of dignity, equality, to earn a living and to provide for the best interest of her children,” wrote Davis.

There are several applications of this “rationality test” within the order and we urge you to read them.

So what happens now?

It should be noted, as Davis points out, that this order doesn’t outline what the minister must amend, only that the regulations regarding lockdown must be amended.

The minister has 14 working days to do this “or such longer time as this court may, on good grounds shown, allow” and report its compliance to the court.

During that time, regulations designated as Alert Level 3 shall apply.

A report from EWN states that Cabinet is reviewing the court order.

Three months getting closer

South Africa entered a State of Disaster – as declared by President Cyril Ramaphosa – on 15th March 2020.

In terms of the Disaster Management Act, a national State of Disaster “lapses three months after it has been declared”.

That three month mark is fast approaching and currently given the date it was declared, the State of Disaster is set to lapse later this month on 15th June (as this would mark three months to the day that the State of Disaster was declared).

The order above, however, would give government three days after the State of Disaster ends to respond.

What we could see is that government extends the State of Disaster (that act allows for this) which means it would have to address this matter.

On the other hand, government could allow the State of Disaster to lapse which would in turn render the regulations promulgated under it void which would make compliance with the above order an impossibility as there would be no regulations to amend.

A third scenario is that the minister lifts the State of Disaster only to declare a new instance which would likely bring with it new regulations.

In short, the above court order has thrown a cat among the pigeons and all eyes are now on government to note how it will comply or whether it will appeal the order.

The next few days should be rather interesting.

[Image – CC 0 Pixabay]