Chief Justice Mogoeng Mogoeng and the Heads of Court at the media briefing at the Office of the Chief Justice in Midrand. Picture:FREDDY MAVUNDA
Chief Justice Mogoeng Mogoeng and the Heads of Court at the media briefing at the Office of the Chief Justice in Midrand. Picture:FREDDY MAVUNDA

The government and the courts are gearing up for possible urgent legal challenges to the state’s emergency lockdown regulations, which have been formulated in response to the global Covid-19 pandemic and are set to go into effect from midnight on Thursday.

These regulations were published in the Government Gazette — a process required to ensure they are legally binding — late on Wednesday afternoon.

Justice & constitutional development minister Ronald Lamola linked the regulations and their implementation to section 36 of the constitution, which allows for the limitation of constitutional rights “to the extent that the limitation is reasonable and justifiable in an open and democratic society”.

Chief justice Mogoeng Mogoeng on Wednesday pointed to the possibility of legal challenges “in relation to the constitutionality or the validity of the measures being implemented” by the state and said courts “therefore have to stay open” to deal with such cases.

Mogoeng delegated the heads of all lower and superior courts to issue their own directives “that would enable access to courts in relation to any urgent matter, bail applications, maintenance and domestic violence-related matters and cases involving children issues”.

Western Cape judge president John Hlophe issued an instruction on Wednesday afternoon that his court will only issue urgent applications in the scenarios outlined by Mogoeng “including matters related to Covid-19”. 

Hlophe’s directives make it clear that the Western Cape High Court will not be proceeding with criminal trials or non-urgent civil cases during the lockdown period. Those civil cases include public protector Busisiwe Mkhwebane’s urgent bid to halt a parliamentary inquiry into her fitness to hold office from proceeding, pending her challenge to the rules that govern that inquiry. That case has now been postponed indefinitely.

Under the lockdown regulations South Africans will be expected to stay at home, except under very specific circumstances, and businesses that are not essential must not operate. Failure to comply with these rules could result in imprisonment or a fine.

Business Day has learnt from a reliable source that the state attorney’s office, which is responsible for dealing with civil litigation involving the state, has asked a number of established senior advocates for pro bono assistance with legal challenges to the shutdown regulations.

Mogoeng said on Wednesday that “even in the case of the state of emergency, section 37(3) of the constitution empowers the courts to pronounce on the validity of the declaration of the state of emergency and related matters”.