While the Gauteng High Court in Pretoria has ordered that the lockdown regulations, which were declared invalid and unconstitutional, be amended within 14 days, the national state of disaster is set to lapse before that deadline.
On Tuesday, Judge Norman Davis found that, while the declaration of a national state of disaster to fight the Covid-19 pandemic was rational, many of the promulgated regulations for Level 4 and 3 of the lockdown were not rationally connected to the objectives of slowing the rate of infection or limiting the spread of the virus.
The judgment, handed down in the High Court, followed the urgent application brought by the Liberty Fighters Network (LFN) and the Hola Bona Renaissance Foundation.
Davis ordered that the promulgated regulations, which have been declared invalid, be reviewed, amended and republished by Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini-Zuma within 14 days of the judgment.
This effectively means that, if the government does not appeal the judgment, it would have until 19 June to make the changes. However, if the current national state of disaster, which officially ends on June 14, is not extended, then the current regulations, whether amended or not, will no longer have any legal bearing.
According to the Disaster Management Act (DMA) of 2002, a national state of disaster lapses three months after it has been declared.
Dlamini-Zuma declared the national state of disaster on 14 March this year, citing the magnitude and severity of the Covid-19 outbreak and taking into account the need to augment the existing measures to deal with the pandemic.
The DMA does make provisions for the extension of the national state of disaster for a period of one month at a time, which can be extended by notice in the government gazette.
Dr Cathy Powell, an associate professor in public law at the University of Cape Town, explained that the DMA, and subsequently the declaration of the national state of disaster, is the legal basis on which the regulations depend.
If the national state of disaster is extended, and the judgment hasn’t been appealed, then the judgment is still enforceable as the existing regulations would carry over with the extension.
Law expert James Grant said, if the judgment isn’t appealed and the national state of disaster is not extended, then regulations would no longer have any binding force.
He noted, however, that the judgment would still have a bearing on what has already transpired, to the extent that these regulations have already impacted people’s lives in one way or another.
Grant was also of the view that the chances of the judgment not being appealed were slim and that, once there was an appeal, the judgment would be suspended.
Dlamini-Zuma’s spokesperson Mlungisi Mtshali told News24 that it would discuss the overall status of the national state of disaster and its response to the pandemic, after which an announcement on the next steps to be taken would be made.