ARE LOCKDOWN LEVEL REGULATIONS UNCONSTITUTIONAL?
There are also a number of court cases pending, which outcomes might see further regulations deemed invalid or contravention of those regulations deemed too trivial to attract criminal liability.
On Tuesday 2 June 2020, the North Gauteng High Court declared lockdown levels 3 and 4 regulations invalid and unconstitutional, but what does this really mean?
It means the invalidity of those regulations are suspended for 14 days, in order to allow the Minister together with Cabinet to review, amend and re-publish those regulations. In the meantime, the regulations set will remain in place.
The hastily written judgment does not specify whether the invalidity of those regulations will apply with retrospective effect. In other words, whether or not the order will have bearing on what has already transpired.
If retrospectively applied, which it is likely to be, this will entail that most offences committed under those regulations will be invalid. Therefore, persons who contravened the now invalid regulations should be entitled to repayment of any fines paid and their convictions set aside. Furthermore, those who have suffered damages or inconvenience as a result thereof, could take action against the State to be adequately compensated.
It is likely that the order will apply retrospectively. However, as the Government has declared that they will appeal the judgment, it is likely the order could be suspended further.
If the appeal is dismissed, those charged under the regulations should welcome court action against the State, as it is likely that the courts will become inundated with cases regarding the contravention of the Covid-19 lockdown regulations and could seek to withdraw same.
Despite the above news being welcomed by many and the knee-jerk reaction being that one should take legal action against the state, we tend to err on the side of caution. Before going down this path we strongly urge you to consult with us to give you an unbiased professional opinion and some guidance how best to go about taking action and what steps need to be taken to have a successful outcome.
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