Regulations under Alert Levels 4 and 3 declared unconstitutional and invalid

The lock down regulations were declared unconstitutional and invalid on Tuesday, 02 June 2020 by the North Gauteng High Court in the judgment of De Beer & 2 others v Minister of Cooperative Governance and Traditional Affairs. The regulations will, nevertheless, remain in place for the next 14 days.

Judge Davis found that “once the goal was to “flatten the curve” by way of retarding or limiting the spread of the virus, little or in fact no regard was given to the extent of the impact of individual regulations on the constitutional rights of people and whether the extent of the limitation of their rights was justifiable or not”.

Judge Davis explained that where a decision is challenged on the grounds of rationality or, as is this case, the regulations are attacked on the basis of irrationality, ” … courts are obliged to examine the means selected to determine whether they are rationally related to the objective sought to be achieved. If, objectively speaking, they are not, they fall short of the standard demanded by the Constitution”. It follows that, if a measure is not rationally connected to a permissible objective, then that lack of rationality would result in such a measure not constituting a permissible limitation of a Constitutional right in the context of Section 36 of the Constitution.

In applying the ‘rationality test’ to the regulations, Judge Davis found various of the regulations are not rationally connected to the objective they seek to achieve. The judgment lists a number of regulations which fail the rationality test (Regulations 35, 35(3), 48(2), 33(a)(e), 33(1)(e), 39(2)(m) and 39(2)(e)). However Judge Davis states that it is clear on a “mere reading of the regulations, that there are many more instances of sheer irrationality included therein. One need only to think of the irrationality in being allowed to buy a jersey but not undergarments or open-toed shoes and the criminalization of many of the regulatory measures.”

Some regulations (Regulations 36, 38, 39(2)(d) and (e) and 41) have passed the test and are unaffected by the judgment along with the regulation prohibiting the sale of tobacco products which is the subject of multiple separate court challenges.

To avoid the creation of a regulatory void, the declaration of invalidity has been suspended for 14 days thereby permitting the Minister of Cooperative Governance and Traditional Affairs opportunity to review, amend and republish those regulations which fall short.

In the meantime, the Regulations in their present form remain in force and should be adhered to.