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Supreme Court finds lockdown exercise regulations invalid

Staff Reporter

The Supreme Court of Appeal (SCA) has ruled that it was wrong for the government to restrict certain physical exercises to particular times of day and prohibit over-the-counter sale of cooked hot food under the Level 4 of the national lockdown.

The SCA made the ruling on Thursday when it dismissed an appeal brought by Western Cape resident Duwayne Esau and seven others against the Minister of Co-operative Governance and Traditional Affairs Nkosazana Dlamini-Zuma, President Cyril Ramaphosa and the Minister of Trade, Industry and Competition Ebrahim Patel.

The appellants argued that the regulations restricting freedom of movement and those concerning economic activity were invalid because they infringed on fundamental rights.

They said those infringements were not justified in terms of Section 36(1) of the Constitution.

In response to the COVID-19 pandemic, the CoGTA minister declared a national state of disaster March 15, 2020, in terms of the Disaster Management Act 57 of 2002.

Nearly two weeks later on March 26, 2020, a total lockdown was imposed and Dlamini-Zuma promulgated regulations to give effect to the lockdown.

The country was placed on Level 5 – the highest level – of a five-level system that classified the severity of the measures needed to combat the pandemic.

Later, as the infection rate slowed down, the regulations were amended to ease the harsher effects of the lockdown, and the country was moved to Level 4.

The Level 4 regulations were initially challenged in the Western Cape High Court in Cape Town on the basis that the CoGTA minister had not afforded the public adequate time to make representations.

She had however allowed two days for representations.

During that time, more than 70 000 representations were received from the public.

The SCA held that, in the circumstances, an adequate opportunity had been afforded to members of the public to be heard on the content of the Level 4 regulations.

But the appellants argued that the CoGTA minister could not have applied her mind properly to the representations that she received in the short time between the deadline for representations and the promulgation of the Level 4 regulations.

Her evidence, according to the court papers, was that teams had been set up to process the representations and that the work of the teams had been fed into her decision-making.

The SCA concluded that Dlamini-Zuma had given fair consideration to the representations made by members of the public when making the Level 4 regulations.

The SCA accepted that the impugned regulations infringed the rights to freedom of movement, to human dignity and to freedom of trade, occupation and profession.

It concluded that with the exception of two regulations, the CoGTA minister had justified the limitation of those rights in terms of the country’s constitution.

The SCA however found that the regulations restricting the taking of exercise to certain times, places and modes of exercise, and the prohibition of the over-the-counter sale of cooked hot food were invalid.

The court did not decide on the validity of the directions issued by the Minister of Trade, Industry and Competition as they ceased to have effect when the country moved from Level 4 to Level 3.

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