Lockdown judgment should have been more concise and persuasive: legal experts
The Pretoria high court judgment which has declared lockdown level 3 and 4 regulations invalid and unconstitutional, lacks specific detail on the irrationality of the rules, legal experts say.
On Tuesday, judge Norman Davis declared that the regulations promulgated by co-operative governance & traditional affairs (Cogta) minister Nkosazana Dlamini-Zuma were “unconstitutional and invalid”.
Constitutional law expert Prof Pierre de Vos told Cape Talk on Wednesday the judgment did not specify whether the invalidity of the regulations applied from when they were promulgated.
“The application to the specifics is a little bit of a mess because the judge did not discuss all the regulations.
“He used a few ... and then he said that means almost all the regulations are irrational, which is not something one can do in a legal perspective,” De Vos said.
Two TimesLIVE reporters went out on a rainy Cape Town morning on May 29 2020 to determine how easy it was to locate cigarettes during lockdown and how much they were fetching on the black market. The sale of tobacco products has been banned by government for 'health reasons' across South Africa since the start of the Covid-19 lockdown at the end of March.
He said the judgment was likely to be appealed. “I think most or all of it will be overturned,” he said.
Daniel Witz, a lawyer, shared De Vos's sentiments.
“There is a lot to learn from the judgment but in my view it could be more concise, accurate and persuasive. I would be surprised if it survives the scrutiny of a higher court. Alternatively, I would expect a change to be made in the specific regulations cited in the judgment,” said Witz.
Meanwhile, different groups and organisations have welcomed the judgment.
Tax Justice South Africa has called on President Cyril Ramaphosa to use the judgment to right his “wrongs” by lifting the ban on the sale of cigarettes.
“The judgment gives government 14 days to put its house in order. This is the time for President Ramaphosa to show true leadership and admit the error of the cigarette ban,” said founder Yusuf Abramjee.
“The prohibition has failed dramatically. Smokers are still smoking and criminals in illicit trade are getting rich. Meanwhile, South Africans are being robbed of R35m a day in taxes,” he said, adding that the ban had turned 11-million smokers into criminals as they found ways to source illicit cigarettes.
“As well as lost taxes, the government will only waste more money if they try to defend this unworkable ban in court,” he said. “Public anger is growing by the day, and the distress caused to smokers is becoming unbearable,” he said.
AfriForum described the lockdown regulations as “an inexcusable violation of people’s basic liberties”.
It said it was ready to continue helping the tobacco, beauty and restaurant industries with legal action as they waited for the level 3 regulations to be lifted.
While declaring level 4 and 3 invalid, Tuesday’s high court ruling had suspended the declaration of invalidity for 14 days.
Meanwhile, a Braamfontein hairdresser (who did not want to be named) on Tuesday told TimesLIVE how, like smokers, she had been forced to go the illegal route to put bread on the table.
“I have been contacting my clients who would usually come to the salon and offering to make house calls. When I get there I sanitise my hands and keep my mask on while they do the same. It’s been a risk, as travelling to them was not always easy but I had to do what I had to do to survive,” she said.
While she was not aware of the potential impact of the judgment on her trade, she welcomed it, “if it meant getting things back to normal”.
In his judgment, Davis listed hairdressers as one of the groups that were unfairly affected by the lockdown.
“To illustrate this irrationality further in the case of hairdressers: a single mother and sole provider for her family may have been prepared to comply with all the preventative measures proposed in the draft alert level 3 regulations, but must now watch her children go hungry, while witnessing minicab taxis pass with passengers in closer proximity to each other than they would have been at her salon.
“She is stripped of her rights of dignity, equality, to earn a living and to provide for the best interests of her children,” Davis said.