In a judgment handed down by the High Court of SA (Gauteng Division, Pretoria), Judge Davies has declared the Level 4 & 3 Lockdown regulations unconstitutional and invalid, and has further ordered that the Minister pay the costs of the 1st and 2nd Applicant (R D de Beer & Liberty Fighters Network).


The declaration of invalidity is suspended until such time that the Minister, after consultation with the relevant ministers, reviews/amends/republishes these regulations with due consideration to the limitation that each regulation has on the rights guaranteed as per the Bill of Rights.


The Minister has been ordered to comply within fourteen (14) business days from date of the order.  They will, therefore, need to comply by end of business on 23 June 2020.  However, on good grounds shown, this period may be extended by the court.


Until this date, the current regulations will still be in effect.

Unfortunately, the sale of tobacco and other related products have been excluded from the judgment, due to the pending matter in the same court.  If the court will follow suit in this regard, we cannot yet say due to the health considerations that will be applicable in the matter.


The full judgement can be viewed by clicking here.


Judge Davies had quoted a recent article by Carlitz in De Rebus (2020) June DR 9 entitled “Government’s response to COVID-19: Has the Bill of Rights been given effect to?” in his rational:

“COVID-19 is a fierce pandemic with numerous deaths across the world, and unfortunately, there is no date on our calendar, which we can circle, to indicate when the storm will finally pass. Yes, there are unprecedented hardships on social, political, health, and economic sectors, but even more so on basic human rights. These distresses are felt more harshly by the least protected in society who do not have access to adequate housing, clean running water, health care, food, or social security, which are all guaranteed basic human rights.


The protection of inherent human dignity is another constitutional right guaranteed in s 10 of the Constitution. While it goes without saying that the loss of employment or livelihood impact on one’s dignity; the rapidly increased rate of gender-based violence during lockdown raises concern and alarm. Women and men are beaten and abused by their partners while being compelled by law to stay inside their homes. They cannot run or escape and are left helpless.


During a pandemic, government should never lose sight of basic human rights. In fact, it should prioritise the realisation and protection of human rights in such a time even more so. In my view, the Bill of Rights has not been given effect to. A pro-human rights lockdown would have perhaps looked much different –

  • military officials would have acted more humanely;
  • lockdown regulations would not have been equally strict over different parts of the country and would have taken into account personal living conditions of the poor; and
  • the fulfilment of human rights would have been the most important priority to attain.”


Judge Davies, when applying the rationality test, dissects certain Regulations and points out the rationality or lack thereof and in some cases citing the absurdity thereof:

  • “There are numerous, thousands, no millions of South Africans who operate in the informal sector. Various individuals who have lost their livelihood and the right to “eke out a livelihood” as the President referred to. Their contact with other people is less on a daily basis than, for example, the attendance of a single funeral.  The blanket ban imposed on them as opposed to the imposition of limitations and precautions appears to be irrational.”.
  • “The limitations on exercise are equally perplexing: If the laudable objective is not to have large groups of people exercising in close proximity to each other, the regulations should say so rather than prohibit the organising of exercise in an arbitrary fashion (Regulation 33(a)(e)). Judge Davies goes further and states: “To restrict hours of exercise to arbitrarily determine time periods is completely irrational”.
  • “And what about the poor gogo who had to look after four youngsters in a single room shack during the whole Lockdown period? She may still not take them to the park, even if they wear masks and avoid other people altogether (Regulation 39(2)(e)).


These are only some of the Regulations the Judge dissects and identifies the pure ridiculousness thereof.  I would urge that readers go and read the full judgement.


In some of the concluding remarks, Judge Davies makes the following statement which clearly sums up the reasoning behind his final judgement:

“The clear inference I draw from the evidence is that once the Minister declared a national state of disaster and once the goal was to “flatten the curve” by way of retarding or limiting the spread of the virus (all very commendable and necessary objectives), little or in fact no regard was given to the extent of the impact of individual regulations on the constitutional rights of people and whether the extent of the limitations of their rights was justifiable or not.  The starting point was not “how can we as government limit Constitutional Rights in the least possible fashion whilst protecting the inhabitants of South Africa?” but rather “we will seek to achieve our goal by whatever means, irrespective of the costs and we will determine, albeit incrementally, which Constitutional Right you as the people of South Africa, may exercise”. The affidavit put up on behalf of the Minister confirms the factual position of the latter.”


Judge Davies then finally found that in an overwhelming number of instances the Minister had not demonstrated the limitation of the Constitutional Rights in accordance with Section 36 of the Constitution.


We believe that we are all in store for an interesting fourteen (14) business days as COGTA and their legal-team work through the judgment and decide whether to comply or appeal the judgment.


CEO will keep you up to date of any further developments.


Article by: Jaundré Kruger

Provincial Manager – FS/NC