In a previous article, we reported the decision in Reyno Dawid de Beer and Others v Minister of Cooperative Governance and Traditional Affairs ("COGTA"), in which the Pretoria High Court declared the level 3 and 4 regulations unlawful, and we argued that the decision was unlikely to survive on appeal.
On 30 June 2020, Judge Norman Davis granted the state leave to appeal the decision, but only on the narrow ground that he had declared the regulations unlawful in their entirety, without assessing the lawfulness of each individual regulation.
The Minister of COGTA raised four grounds of appeal:
- the applicants' failed to plead their case with sufficient precision and, in particular, failed to properly plead the constitutional rights that formed the basis of their cause of action;
- the court impermissibly strayed beyond the pleadings, by considering the level 3 regulations, when such regulations were not before the court;
- the court declared the regulations unlawful in their entirety, without assessing the lawfulness of each individual regulation; and
- the relief granted by the court was impermissibly vague, because it failed to specify which of the regulations the minister was required to amend.
Judge Norman Davis held that:
- despite the inelegance of the applicant's pleadings, these pleadings were such that the minister knew the case that she had to meet, and therefore was not prejudiced by the way the applicants pleaded the case;
- the minister had urged the court to consider the level 3 regulations, despite the fact that these regulations were not properly before the court, and therefore it was not open for the Minister to raise this as a ground of appeal;
- when read together with the judgment, the court's order specified with sufficient clarity which of the regulations the minister was required to amend.
Accordingly, the court held that three of the four grounds of appeal lacked reasonable prospects of success. However, the court held that since it had declared the regulations unlawful in their entirety, without considering each regulation individually, there were reasonable prospects that the declaration of unlawfulness, as it pertained to regulations that the court had not considered, would be overturned on appeal. The court therefore granted leave to appeal on this narrow basis.
With regard to the remaining regulations, which the court had specifically considered and declared unlawful, the court ordered the minister to amend these regulations within 10 days of its order. The minister was ordered to amend the following level 4 regulations:
- regulation 33(1)(e) which had restricted the permissible hours of exercise to 06h00 to 09h00;
- regulation 34 which regulated movement of children during the lockdown;
- regulation 35 which regulated funerals;
- regulation 39(2)(m) which prohibited public access to parks and beaches;
- the wholesale ban on the operation of the informal economy; and
- the criminalisation of a breach of the regulations.
The court noted that various of these regulations have already been amended and therefore, without specifying which of these regulations had been adequately "corrected", suggested that the unlawfulness with certain of these regulations might have been cured.
In our view, despite the narrow basis on which the court granted leave to appeal, the Supreme Court of Appeal is likely to consider all of the minister's grounds of appeal. It is also likely that the minister will petition the Supreme Court of Appeal to allow an appeal against all the orders that were previously granted by the Pretoria High Court, in which case the declaration of unlawfulness for all of the regulations will be suspended pending a final determination by the Supreme Court of Appeal.
Originally published 07 July 2020.
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