Dlamini-Zuma slams 'vague' lockdown judgment as lawyers file appeal

Co-operative governance & traditional affairs (Cogta) minister Nkosazana Dlamini-Zuma has argued that a judgment which labelled lockdown regulations as “invalid” was vague and does not tell her which rules should be changed and how she should do so.

This is contained in court papers filed on behalf of the Cogta minister on Monday as she seeks to appeal the high court judgment.

Last week, the North Gauteng High Court declared that the lockdown level 3 and 4 regulations promulgated by Dlamini-Zuma were “unconstitutional” and “invalid”.

Judge Norman Davis suspended the declaration of invalidity for 14 days, giving the government time to “review, amend and republish regulations” which were consistent with the constitution.

The matter, Dlamini-Zuma's lawyers argue, should be heard on an urgent basis by the Supreme Court of Appeal.

In the papers, they argue that Dlamini-Zuma was not called on to justify level 3 regulations in an application brought by Reyno Dawid De Beer and an organisation called Liberty Fighters Network.

“The court observed that the level 3 regulations have neither been placed before me nor have the parties addressed me on them,” Dlamini-Zuma said.

Her lawyers argued that the court erred in striking down the disaster regulations on the basis of its findings that a number of level 3 regulations were “irrational and unconstitutional”.

“Their constitutionality was never raised. The judgment thus went beyond the pleadings, which is not permissible,” the papers read.

The papers also note that the matter before Davis was heard on May 28, the same day on which the level 3 regulations were published.

“The application was an attack limited to the disaster regulations up to and including the level 4 regulations. It was not aimed at level 3 regulations, which had not yet been promulgated,” Dlamini-Zuma's lawyers argue.

According to the lawyers, Davis's finding that a limited number of the level 3 regulations were unconstitutional did not justify him striking down all the lockdown rules.

The lawyers described as “vague” the court orders that required the minister to “amend, review and republish” all the lockdown regulations except for a few excluded in the order.

“These orders are unduly vague because they do not tell the minister what is required of her to comply with the orders. They more particularly do not tell the minister which regulations she must amend and how she must amend them.”

The lawyers say there are “compelling” considerations of “high public interest” that the application should be heard “urgently” by the Supreme Court of Appeal.

These include that the regulations affect the lives of South Africans on a daily basis.

“If they are in breach of the constitution, that needs to be determined as a matter of high urgency.”

If the regulations are “compliant, valid and binding”, that should also be determined without delay, the lawyers argue.