Tuesday, 30 November, 2021
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State and constitutional activists in rare agreement

The Gauteng High Court (Pretoria) judgment declaring lockdown regulations invalid and unconstitutional was a case of judicial overreach, the Supreme Court of Appeal heard, reports MedicalBrief.

IoL reports that the Council for the Advancement of the South African Constitution (Casac) – ‘a civil society organisations with a track record of squaring off with the government in court’ – joined forces with the government to tear into the High Court ruling that declared the lockdown regulations invalid and unconstitutional.

Advocate Geoff Budlender SC, appeared on behalf of Casac, which was participating as an amicus curiae in the matter between Liberty Fighters Network (LFN) and Co-operative Governance & Traditional Affairs Minister Nkosazana Dlamini-Zuma, represented by Advocate Wim Trengove SC.

LFN took the Minister to court over last year's lockdown regulations. The High Court ruled in LFN's favour, saying while declaring a state of disaster was rational, some of the regulations were irrational, thus making all Disaster Management Act regulations unconstitutional and invalid. Dlamini-Zuma is appealing the decision.

LFN and Hola Bon Renaissance Foundation – an amicus curiae – refused to participate in the online court hearing, wanting the matter to be heard in an open court. LFN's Reyno de Beer also wanted the five justices presiding over the case to recuse themselves.

News24 reports that Budlender said that High Court Judge Norman Davis had been ‘panicked by the case’. The court declared regulations invalid without saying why they are invalid. ‘It's deeply ironic in a case where the learned judge criticised the Minister for not giving reasons for what she did. He then gave orders of invalidity without giving reasons why.’

‘This is in truth a case of judicial overreach … An endeavour of this kind, in the end, undermines the endeavour of courts to hold power to account because the courts look as though they are meddling in things they really don't know about and things they plainly got wrong.’

Trengove also said the High Court had erred in its judgment. ‘His (De Beer) attack is that all of the regulations violate many provisions of the Bill of Rights. With respect, when one contends that a law is unconstitutional, then you have to identify the particular law, the constitutional right it violates. The High Court judgment was wrong.’ T

The SCA reserved judgment.


Full IoL report (Open access)


Full News24 report (Open access)

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