On the 2nd of June 2020 the Gauteng High Court handed down judgment declaring that the regulations under alert level 3 and 4 to be unconstitutional but many people are left confused wondering:
- What does that mean for me and my family?;
- How did this come about? and
- What are the consequences if any of such a judgment?.
It is important to start, like any story, at the beginning and the same can be said when it comes to the enactment of laws and regulations.
Who makes laws in South Africa:
Parliament has the necessary legislative powers to make law, amend laws, and repeal laws. These laws however are voted on by parliament as a whole and need cabinet approval before they can come into existence. Most laws have to go through a strict step by step process before they are enacted.
How were the regulations under alert level 3 and 4 enacted?
The state of disaster which was declared by the President this allowed the government to enact the regulations under the Disaster Management Act.
These regulations were unilaterally enacted. Meaning it skipped the normal strict process of enactment due to the fact that it was an emergency situation and there was no time for due process.
Why the regulations were considered to be unconstitutional:
In certain instances, the government can limit citizens right under the constitution if such limitation is rational.
However, the court, in this case, has found that these regulations limit citizens rights to an extent that is not rational and can be seen as contradictory such as (to list a few):
- You can walk on the promenade which can be classified as exercise but you cannot be on the actual sand or in the sea itself;
- You cannot visit with your close or immediate family members but you can attend their funeral when they die;
- You are allowed out in public to exercise but only between the hours of 5 am-9 am.
What happens now:
The minister has 14 days from date of judgment to make the necessary changes to the regulations to abide by the court’s decision however, it is important to note that the minister can appeal this decision to a full bench of the High Court or take the matter to the Supreme Court of Appeal for hearing.
For now though as citizens we are to abide by the regulations until we are told otherwise because at present those are the laws still before us.
Reining of power by the government:
There is a very interesting interview done on 5fm radio with Eitan Stern from Legalese where he outlines governments power to sometimes to do as they deem fit without fully taking into account the citizens of the country and likened his example loosely on what is happening in the United States where the government is forcing police and military to break up protests against racial violence which in effect is creating more violence.
He states that although the two countries are in two very different situations the use of power used by the government, although the intentions may be good for its citizens, has in many circumstances made the relationship of trust with citizens and government worse.
This can be seen in our country by the lack of communication, the executive decisions by the National Comand Council, and the gross misuse of power by certain ministers.
If you would like more news on what is happening in our country and any laws you may be confused about please feel free to contact us today on 031 003 0630 or email us at Charmaine@schwenninc.co.za .