Supreme Court shoots down ruling that Covid-19 lockdown rules were ‘unconstitutional and invalid’

The Supreme Court of Appeal (SCA) on Thursday overturned a high court ruling that the country’s lockdown rules were unconstitutional.

In an often critical ruling, the SCA said the case brought by the l Liberty Fighters Network in May 2020 was “wholly inadequate” and the high court “was willing to see a case where there was none and unjustifiably excused the manner in which it was framed”.

In a North Gauteng High Court judgment in June 2020, judge Norman Davis declared the regulations promulgated by cooperative governance and traditional affairs (Cogta) minister Nkosazana Dlamini-Zuma were “unconstitutional and invalid”.

Davis was particularly concerned about some regulations under level 4 and level 3 of the lockdown, saying little thought appeared to be given to how those regulations infringed on individual rights.

He said that not only did some regulations fail to pass the test of rationality, but they also encroach on rights guaranteed in the Bill of Rights in a manner not “justifiable in an open and democratic society based on human dignity, equality and freedom as contemplated in section 36 of the Constitution”.

The SCA was critical of the judgment, saying it went beyond what was in front of it.

As an example, it said when the application was launched, the level 3 restrictions hadn’t yet been promulgated, with the Liberty Freedom Fighters making reference to level 4 restrictions.

“Accordingly, it was impermissible for the high court to have considered and made a determination in respect of the level 3 regulations, which were not properly before the high court. What is more, it arrived at its conclusion without affording the minister an opportunity to be heard. The breach by the high court of something so fundamental as the right to be heard taints the high court’s judgment.

“At the hearing of the matter, neither the high court nor the parties had even so much as seen the level 3 regulations. Indeed, the high court had observed the level 3 regulations ‘have neither been placed before me nor have the parties addressed me on them’. That notwithstanding, the high court appropriated to itself the right to consider and make a determination on the six level 3 provisions. The judgment thus went beyond the respondent’s pleaded case.

“It ought to follow that on the strength of this fundamental error alone, the high court’s orders fall to be set aside,” the SCA said.

The SCA was also critical of the Liberty Fighters Network case, saying it was “based upon sweeping generalisations and broad conclusions”.

“In the first place, the respondents did not file any confirmatory affidavits from those persons who had allegedly complained to Mr De Beer [the organisation’s founder Reyno de Beer] about the hardships they were experiencing. In the second place, Mr De Beer simply annexed reports to his affidavit (the provenance of which was not always clear), in support of what may somewhat loosely be described as Covid-19 denialism. As no affidavits accompanied these annexures, and Mr De Beer lacked the necessary expertise to testify to the truth of their content, the foundational hypothesis sought to be advanced by the respondents was unsupported.

“Regrettably, the high court simply failed to consider either the admissibility of the allegations advanced by Mr De Beer or their evidential weight, if any. Had it done so it would have arrived at the conclusion that, even on their own version, no cognisable case had been made out by the respondents,” the SCA said.

It said ultimately “there was no properly pleaded case”.

“There was a complaint that the proclamation of the national state of disaster was irrational and based on incorrect advice and unreliable information. The high court was willing to see a case where there was none and unjustifiably excused the manner in which it was framed. To sum up on this aspect of the case: The case put forward by the respondents was wholly inadequate. There was no cognisable case to answer.”

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