Jackson Mthembu. Picture: FREDDY MAVUNDA
Jackson Mthembu. Picture: FREDDY MAVUNDA

The government said on Thursday that it will appeal a court decision that ordered its lockdown invalid saying it believed another court would come to a different conclusion on the matter.

The decision to appeal the Pretoria high court ruling was announced after this week’s cabinet meeting and could further increase the number of legal challenges the government is facing over the lockdown and some of its regulations. The DA is challenging the constitutionality of the Disaster Management Act, the legislation being used as the framework for the lockdown.

The tobacco industry has also taken the government to court, challenging the state’s regulation to ban the sale of its products in both lockdown levels 4 and 3.

“After obtaining legal advice and listening to numerous comments made by members of the legal fraternity in reaction to the judgment, we are of the view that another court might come to a different conclusion on the matter,” minister in the presidency Jackson Mthembu said at a media briefing after the cabinet meeting.

The court challenge was lodged by Reyno de Beer of Liberty Fighters Network, a little-known organisation of which De Beer is president, against co-operative governance and traditional affairs minister Nkosazana Dlamini-Zuma. It was the first successful legal challenge to the measures put in place by the government when the country moved to level 4 of the risk-adjusted strategy on May 1.

In his judgment, Judge Norman Davis said the declaration of a national state of disaster in terms of section 27(1) of the Disaster Management Act in response to the pandemic is rational. However, the regulations in respect of alert levels 4 and 3 are not “rationally connected to the objective of slowing the rate of infections or limiting the spread thereof”.

Davis suspended the invalidity of the regulations giving government 14 business days to review and amend them.

Curbing the spread

In a bid to curb the spread of the novel coronavirus, in March the government declared a national state of disaster, which resulted in a myriad of regulations being put in place. Ten days later SA entered into a lockdown, one of the strictest in the world. On Thursday, the cabinet approved the extension of the national state of disaster by another month from June 15 to July 15, according to Mthembu.  

The government will ask that its appeal against the high court judgment be heard on an urgent basis so that it can obtain certainty on the regulations.

Dlamini-Zuma will be joined by President Cyril Ramaphosa and the health minister Zweli Mkhize in the appeal.

“The cabinet wishes to assure the nation that all interventions introduced since the declaration of a state of national disaster in March 2020 by President Ramaphosa have been directed primarily at saving lives,” Mthembu said.

Mthembu said the government is concerned about the impact the judgment will have and defended the government’s stance on the regulations. “We believe our decision-making methodology was very open and we did not do anything that would justify what the court arrived at. That is why we are taking the matter on appeal.” 

Mthembu said the risk-adjusted strategy adopted by the government was “crafted to save lives”, and that it has received praise from commentators and the World Health Organisation for its quick reaction to the coronavirus pandemic.

Mthembu said the health regulations and protocols put in place were necessary and part of the “toolbox to fight Covid-19”.

“All these measures are meant to save lives, all these measures are meant to protect us. We have nothing else. We don’t have a vaccine ... all we have are these protocols, which came in as a consequence of the regulations ... It is only those regulations that will allow us to save our lives.”