Heads will be spinning in Cabinet on Wednesday, as the government attempt to get a grip on the Pretoria High Court’s damning verdict. A judge declared the current form of lockdown “unconstitutional and invalid”, saying that it failed to take the Bill of Rights into account, and it raises questions for citizens who have been arrested or fined under the terms of the National Disaster Act.
LOCKDOWN: THE ARGUMENT FOR SCRAPPING ARRESTS AND FINES
It’s believed that over 200 000 people have been punished by the lockdown laws, which were introduced in March and updated in May and June for subsequently eased restrictions. Reyno de Beer, whose application was successfully upheld by the court, believes that people will be able to overturn their ‘wrongful arrests’:
“If the government doesn’t rectify these unconstitutional regulations, fines will be scrapped and charges against citizens for contravening the rules will have to be dropped.”
“The people who have been arrested… they will definitely have recourse to damage claims against the government. I’m sure our government will be properly advised in that regard.”
Reyno de Beer
‘ENFORCEMENT’ OF REGULATIONS DEEMED UNLAWFUL
That would be consistent with the judge’s wording, too. In the published verdict, the enforcement of the lockdown rules – which includes arresting those who were seemingly in breach of the regulations – have been labelled ‘arbitrary and unlawful’. Quite simply, any attempts to enforce justice under an invalid lockdown act have failed to pass the ‘rationality test’, according to the court:
“In every instance where means are implemented by authorities to obtain a specific outcome, an evaluative exercise must be taken insofar as those means may encroach on a personal right to determine whether such action was ‘Constitutional’.”
“Without conducting such inquiries, the enforcement of these means – even in a bona fide attempt to gain a legitimate gain, would be arbitrary and unlawful. The lockdown regulations do not satisfy the ‘rationality test’, and they are not justifiable in an open and democratic society based on human dignity and freedom.”
Pretoria High Court
LOCKDOWN ARRESTS COULD STILL STAND IF GOVERNMENT WINS LEGAL APPEAL
At the moment, the invalidation of lockdown arrests and fines remains up for debate. The government was given 14 business days to draft new regulations that are in line with the Constitution, and the law of Level 3 remains in place for the next two weeks at least. There is no guarantee that all breaches of the lockdown can be expunged, but DA leader John Steenhuisen believes the government is facing many more legal defeats.
Tweeting on Wednesday evening, he said that the High Court’s decision will be part of a ‘series of lessons’ the ministers will learn in regards to civil liberties. Yet those who have been punished by the now-invalid lockdown laws can’t get their hopes up too much – because the fightback is likely to begin soon.
The judgement handed down by the North Gauteng High Court could be challenged by an appeal to the Constitutional Court, should the government disagree with Davis’ verdict and refuse to republish new Disaster Management Act regulations. Ex Public Protector Thuli Madonsela, meanwhile, believes that the ruling lacks clarity and persuasive reasoning. Like many other issues, this particular sticking point remains up in the air.
