SA Court declares some lockdown regulations ‘unconstitutional’

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A man walks past a poster covering the side of a building ahead of a 21 day lockdown aimed at limiting the spread of coronavirus disease (COVID-19), in Cape Town, South Africa.

A South African high court has declared some of the government’s coronavirus lockdown regulations unconstitutional.

It suspended the order for 14 days, leaving the rules in place for now.

South Africa introduced in March one of the world’s most restrictive COVID-19 lockdowns – including a ban on alcohol and cigarette sales – but has gradually eased restrictions down to the third of five levels.

The Liberty Fighters Network advocacy group filed a lawsuit against the regulations in May, arguing they were unlawful as they violated South Africa’s Bill of Rights.

In response, the court declared rules governing levels three and four of the lockdown to be “unconstitutional and invalid”.

“The regulations…in a substantial number of instances are not rationally connected to the objectives of slowing the rate of infection or limiting the spread thereof,” the written judgement read.

“Insofar as the ‘lockdown regulations’ do not satisfy the ‘rationality test’, their encroachment on and limitation of rights… is not justifiable,” it continued.

Study the judgment

South Africa’s cabinet said that because of the effect of the court’s decision, current lockdown regulations remained in place, and that it would comment further when it had fully studied the judgment.

President Cyril Ramaphosa and his government initially enjoyed broad support for their choices in the face of the pandemic.

However, after weeks of serious damage to an already shrinking economy, criticism has grown.

John Steenhuisen, leader of the main opposition Democratic Alliance party, which has also launched a court challenge over the issue, said this would be the first of many judgements to go against the government and its “petty, irrational regulations”.

South Africa moved to a level three lockdown on Monday, allowing the vast majority of economic activity to resume, though many public places remain closed, restaurants are only open for takeaway and deliveries, and alcohol can only be sold at certain times.

The judgment said all regulations under level three and four must be reviewed and amended giving due consideration to their impact on individual rights, aside from a few exceptions including the closure of borders, nightclubs and casinos.

The minister of cooperative governance and traditional affairs, Nkosazana Dlamini-Zuma, must do this in consultation with other ministers, it said.

She has come under intense scrutiny for some of the restrictions, including the ban on the sales of tobacco products, which remains in force.