On 02 June 2020, the High Court of South Africa, Gauteng Division, found the current Lockdown Regulations (except for regulations 36, 38, 39(2)(d) and (e) and 41 of the Level 3 regulations) unconstitutional and invalid.
The Court, however, suspended the declaration of invalidity until such time that new regulations are published and ordered the Minister of Cooperative Governance and Traditional Affairs (“the Minister”) to so publish new regulations within 14 (fourteen) business days.
The sad reality, therefore, is that the current Lockdown regulations unreasonably and unjustifiably infringe on the Human Rights of the people of the Republic of South Africa, and it does so with the permission of the Court. This sounds harsh, but it is the truth.
The declaration of invalidity is purely academic until new regulations are published, and has no relaxing effect on the current "invalid and unconstitutional" regulations.
Although the Judgment is positive, the effect thereof brings no immediate relief.
One would have welcomed a more direct attack on specific regulations than all the regulations in general. This, in our view, is not an error on the part of the Court, but rather on the Applicants. The Court can only grant the order that you ask for (with some deviation for practical reasons).
The Applicants in this matter (Mr RD de Beer and Liberty Fighters Network), asked for a declaration that all the regulations be declared unconstitutional, unlawful and invalid and they got exactly what they asked for.
The Court only suspended the declaration of invalidity to avoid the chaos that would have ensued if the regulations were found to be invalid, with no alternative regulations to curb the spread of the coronavirus.
The purpose of this post is not to debate whether the suspension of the declaration of invalidity was the only alternative to avoid chaos. The purpose of this post is to warn Applicants - "Be careful what you wish for."
When you approach the Court with an application of this nature, you have to consider the possibility that you might get what you ask for, AND THEN WHAT? The Applicants here should have offered the Court with alternatives to avoid chaos in the event that the regulations are invalid, but they failed to do so.
That is why it is so important to get attorneys on board, to properly formulate your application (request) to the Court and to provide for the eventuality that you might succeed. To get a win from your day in Court means nothing if you wake up the next morning and smell the same old coffee that made you sick the day before.