[imagesource: Nic Bothma—EPA-EFE/Shutterstock]
UPDATE: The State of Disaster has been extended for another month, through to July 15…
When news broke on Tuesday that a North Gauteng High Court judgment had ruled that many of the alert level 5 and 4 lockdown regulations were “unconstitutional and invalid”, delighted South Africans celebrated by cracking open a cold one.
Given that the alcohol sales were once again allowed from Monday, there was an extra pep in the national step.
Judge Norman Davis suspended the declaration of invalidity for 14 days, meaning that government has two weeks to “review, amend and republish regulations”, with Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini-Zuma responsible for that republishing.
News24 reports that whilst the government has until June 19 to make those changes (I’m not sure why a 14-day suspension from Tuesday would end then), there is an earlier date that could also pose an obstacle to extending the lockdown:
…if the current national state of disaster, which officially ends on June 14, is not extended, then the current regulations, whether amended or not, will no longer have any legal bearing.
According to the Disaster Management Act (DMA) of 2002, a national state of disaster lapses three months after it has been declared.
Dlamini-Zuma declared the national state of disaster on 14 March this year, citing the magnitude and severity of the Covid-19 outbreak and taking into account the need to augment the existing measures to deal with the pandemic.
Dlamini-Zuma actually declared the national state of disaster on March 15, meaning it would lapse on June 15.
The DMA does allow for extensions of one month at a time, done through a notice in the government gazette, and the extension of the national disaster is the legal basis that the lockdown depends on.
Law expert James Grant said, if the judgment isn’t appealed and the national state of disaster is not extended, then regulations would no longer have any binding force.
He noted, however, that the judgment would still have a bearing on what has already transpired, to the extent that these regulations have already impacted people’s lives in one way or another.
If you’re keen to see the lockdown end, I wouldn’t celebrate just yet. Grant added that the judgment will more than likely be appealed, which would mean that the declaration that lockdown regulations were “unconstitutional and invalid” would then be suspended.
Mlungisi Mtshali, the spokesperson for Dlamini-Zuma, said they were considering their options before announcing the next step.
UPDATE: The Cabinet announced this evening that they would appeal the High Court judgment…
Could the lockdown end in 11 days, on June 15, when the national state of disaster lapses after three months? Technically, yes.
Will that happen? Almost certainly, no, but let’s hear from legal expert Daniel Pretorius, who spoke with MyBroadband:
Pretorius confirmed that the national state of disaster is set to lapse on 15 June – three months after it was declared.
When the national state of disaster lapses it means that the current alert level 3 lockdown regulations will no longer be in force.
“The regulations will only remain in force for as long as there is a state of disaster. If the state of disaster is not extended, the regulations will lapse,” said Pretorius.
What is likely to happen is that Minister Nkosazana Dlamini-Zuma will extend the state of disaster for one month at a time.
There is no restriction on how many times the Minister can extend that state of disaster, so again, I would hold off on the celebrations.
Dlamini-Zuma could also declare a new state of disaster for three months, complete with a new set of regulations.
What seems more likely than the lockdown ending is a steady reduction in alert levels, at least in certain parts of the country.
Earlier in the week, President Ramaphosa stated that some of the scientists responsible for advising the government’s response recommended that South Africa could move straight to alert level 1:
He said scientists had advised that “the lockdown has become a blunt instrument” and had served its purpose. Government was advised to rely on other tools to curb the spread of Covid-19 infections, such as promoting social distancing, wearing of masks and hygiene.
Despite this, Ramaphosa and the National Coronavirus Command Centre settled on a drop to alert level 3, citing advice from the World Health Organisation as part of their reasoning.
Perhaps that may change as pressure escalates to ease restrictions, both in court battles across the country and from scientists advising the government.
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