NEWS ANALYSIS: State finally shows signs it is taking legal challenges seriously

As SA moves towards the peak of its Covid-19 infections and deaths, the government is facing an unprecedented onslaught of legal attacks and public criticism about the rationality, lawfulness and fairness of its lockdown regulations, which it insists were put in place to save lives.

Now, after being hit with a scathing Pretoria high court ruling that found its level 4 and 3 lockdown regulations were largely “not rationally connected to the objectives of slowing the rate of infection” of Covid-19, the government appears to be trying to push back against this tide of litigation. It also appears to be using a court case brought by eight “concerned citizens” to challenge perceptions that it has been imposing irrational regulations with no real consideration of their consequences or without proper public consultation.

Co-operative governance & traditional affairs minister Nkosazana Dlamini-Zuma, who has promulgated a series of lockdown regulations being challenged in courts across SA, on Friday slammed accusations that the process she followed in doing so was irrational and unfair. She said the accusation was “without foundation”.

Tellingly, in papers filed at the Western Cape High Court on Friday, the minister also stressed that “lockdown regulations were repeatedly amended” in response to “public commentary, and to address problems, including constitutional issues”.

She stressed that she did not “wish to be seen as suggesting that most people living or present in SA cannot be trusted” to behave in a manner that would limit the spread of Covid-19 infection.

“However, the lockdown had to be designed and implemented not only on the assumption of widespread support, but also to regulate those who were sceptical of the dangers posed by the virus, or were unwilling or unable to change their behaviour voluntarily”.

Dlamini-Zuma was responding to an application brought by four students, a civil servant, a media intern, a research assistant and a data analyst, in which they seek to challenge the lawfulness of the national coronavirus command council (NCCC), the cabinet body in which regulations are formulated and debated.

The group wants the high court to order that the council is inconsistent with the constitution and that it is acting unlawfully, especially in terms of certain of the decisions it has made. Alternatively, they ask that the high court declare the disaster regulations invalid and then give the government 30 days in which to correct their “constitutional defects”.

The case is similar to the largely successful application bought by Reyno de Beer and a little known organisation called Liberty Fighters Network during level 4 of the lockdown. De Beer and Liberty Fighters Network had asked the court to strike down as unconstitutional the declaration of a national state of disaster and all the regulations under it, on the basis that the government’s response to the Covid-19 pandemic was  a “gross overreaction”.

Pretoria high court judge Norman Davis rejected that argument. Instead, he focused his critique of the state on what he found to be the irrationality of a number of the lockdown regulations issued by Dlamini-Zuma. In a ruling that the government says it will appeal, Davis struck down these regulations as “unconstitutional” and gave Dlamini-Zuma two weeks to “review, amend and republish” some of the regulations.

While the government appears to have not taken the De Beer case seriously and filed a response to the application only after being ordered to do so by Davis, Dlamini-Zuma’s answer to the Western Cape case does suggest a shift in the state’s stance to the regulation court challenges.

The minister has filed a 103-page affidavit — which she says will be supported with affidavits from trade & industry minister Ebrahim Patel and medical expert Salim Karrim — in which she not only argues that the command council is lawful but also seeks to explain the rationality behind each Covid-19 lockdown decision and regulation impugned by the eight concerned citizens.

These included directives that limited the sale of retail goods, restrict people to their homes except when leaving for specific prescribed purposes and require people who perform essential services to carry a permit.

While it remains unclear what the Western Cape High Court will make of it, Dlamini-Zuma’s detailed and carefully worded affidavit in this case is, arguably, a far cry from the vague and often high-handed response filed by the co-operative governance & traditional affairs director-general in the Liberty Fighters Network matter.

For the first time, it seems, the government isn’t treating a lockdown legal challenge as an unnecessary irritation or waste of its time. It is seeking to explain its decisions — and possibly regain some of the trust and goodwill it lost in not doing so in the first place.