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'Lockdown judgment likely to be appealed, all or most of it will be overturned'

3 June 2020 9:31 AM
Tags:
Pierre de Vos
SA lockdown levels
lockdown judgment

Constitutional law expert Pierre de Vos says the judge declaring all regulations irrational is not something one can do legally.

Constitutional expert, Pierre De Vos, talks to Refilwe Moloto about the implications of a North Gauteng High Court ruling that lockdown levels three and four are unconstitutional.

This was the judgment in the urgent case brought by a group called the Liberty Fighters Network.

Judge Norman Davis handed down judgment on Tuesday declaring South Africa's lockdown regulations invalid and unconstitutional.

The High Court has suspended the declaration for a period of 14 days and directed the Minister of Cooperative Governance and Traditional Affairs, in consultation with the relevant ministers to review, amend and republish the regulations.

De Vos says when one makes such regulations even in a serious national emergency, they need to only pursue the purpose of the disaster declaration, to stop the spread of the virus, or to save lives in this case.

When they do so, they must do so in such a way as to limit the rights of individuals as little as possible while still achieving the goal.

Pierre de Vos, Constitutional law expert

But the application to the specifics here is a little bit of a mess.

Pierre de Vos, Constitutional law expert

De Vos says the judge, unfortunately, did not go through all the specifics but rather used a few examples.

He used a few of the more absurd things...and that means nearly all the regulations are irrational, which is not something one can do from a legal perspective. So I think the judgment is likely going to be appealed, and all or most of it will be overturned on appeal.

Pierre de Vos, Constitutional law expert

He says the judgment does not go into sufficient detail.

That is an intricate discussion that would require much more engagement with the detail which did not happen unfortunately in the case.

Pierre de Vos, Constitutional law expert

Judge Norman Davis also did not clarify whether the in invalidity of the regulations was retrospective or not, says De Vos.

If it is retrospective then all those arrests and the criminal records would be quashed.

Pierre de Vos, Constitutional law expert

He says the fact that it was not mentioned makes it likely that the ruling is retrospective and all those breaking of regulation cases will be invalid.

The court, however, rejected the argument made that the declaration of the disaster was invalid.

There are a number of other cases still pending.

Listen to the interview below:


3 June 2020 9:31 AM
Tags:
Pierre de Vos
SA lockdown levels
lockdown judgment

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