Home South African Govt can only appeal certain parts of lockdown invalidity judgment

Govt can only appeal certain parts of lockdown invalidity judgment

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Dlamini Zuma has only been granted leave to appeal parts of Judge Davis’s judgment that were not expressly identified in his ruling.

Minister of Cooperative Governance and Traditional Affairs Dr Nkosazana Dlamini Zuma. Picture: Siyabulela Duda/GCIS

THE government faces an uphill battle in the ongoing legal battle to overturn the North Gauteng High Court ruling that the national lockdown is unconstitutional and invalid.

Judge Norman Davis on Tuesday granted Cooperative Governance and Traditional Affairs Minister Dr Nkosazana Dlamini Zuma leave to appeal his judgment delivered on June 2 but severely limited the scope of her appeal at the Supreme Court of Appeal.

Dlamini Zuma has only been granted leave to appeal parts of Judge Davis’s judgment that were not expressly identified in his ruling.

According to Judge Davis, Dlamini Zuma has been granted leave to appeal the declaration on invalidity of lockdown alert levels four and five regulations promulgated in terms of the Disaster Management Act in the matter brought by the Liberty Fighters Network with the Hola Bon Renaissance Foundation admitted as amicus curiae (friend of the court).

”Leave to appeal the remainder of the judgment and orders, including leave to appeal against the declaration of invalidity of those regulations mentioned in the judgment, being regulations 33(1)(e), 34, 35, 39(2)(m), the exception to regulation 46(1) and 48(2), is refused,” reads Judge Davis’s order granted yesterday.

The judge said Dlamini Zuma should only be granted leave to appeal the “blanket” declarations of invalidity but should still be required to review and remedy those identified regulations which displayed a clear lack of rationality and constitutional compliance.

This means that Dlamini Zuma only has 10 days to remedy the regulations whose declaration of invalidity she has been refused leave to appeal.

Judge Davis had initially given Dlamini Zuma 14 days to review, amend and republish the regulations declared invalid after consultations with the relevant Cabinet colleagues.

Among the regulations Dlamini Zuma has been prevented from appealing include the allowing of exercise only between 6am and 6pm provided that it is not done in organised groups and adheres to health protocols and social distancing measures.

She was also not allowed to appeal the declaration that the regulations on the movement of children are invalid.

The regulations make provision for the movement of children between co-holders of parental responsibilities and rights or a caregiver in the same metropolitan area or district municipality to be allowed if there is a court order, a parental responsibilities and rights agreement or parenting plan and a permit from a magistrate.

Judge Davis also denied Dlamini Zuma’s bid to appeal the declaration of invalidity of the regulations on the attendance of funerals.

The regulations state that movement between provinces, metropolitan areas or districts to attend a funeral is only permitted if the person is a spouse or partner of the deceased, child or grandchild of the deceased including biological, adopted, stepchild or foster child-in-law, biological, adopted or step-parent or sibling and grandparent.

According to the regulations, funerals are limited to 50 persons and mourners require permits to travel between metropolitan areas, districts, or between provinces and restrictions are placed on the number of family members who can travel in the vehicle transporting the mortal remains.

Other regulations not subject to Dlamini Zuma’s appeal include the closing of beaches and public parks.

Judge Davis also refused the government leave to appeal his decision finding the exception to businesses that can operate invalid.

The businesses listed include restaurants, on-site consumption of liquor, short-term renting, passenger ships, conferences and events including sporting events, personal care services such as salons, public transport services and tourist attractions, casinos and entertainment activities, among others.

According to Judge Davis’s ruling, Dlamini Zuma will not be allowed to appeal the declaration of invalidity of the offences and penalties listed in the regulations, which are a fine or imprisonment for a period not exceeding six months or to both such fine and imprisonment.