| Level 3 regulations still in force, says lawyer about De Beer judgment

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The army deployed in Alexandra, Gauteng, during the lockdown.

The army deployed in Alexandra, Gauteng, during the lockdown.

  • Level 3 regulations are still in full force unless a court finds otherwise after the government filed for leave to appeal the surprise De Beer judgment.
  • A lawyer briefing the Western Cape legislature said this meant people could still be liable for violating any of the regulations even though a judge declared them irrational.
  • Because of this, people must still abide by all the regulations and directions the government issues.

A lawyer briefing the Western Cape legislature on the court judgment that declared the lockdown regulations irrational and unconstitutional warned Level 3 lockdown regulations still apply until an appeal court decides otherwise.

This means it is still not permissible to do things like walk on the beach, or violate any of the current Disaster Management Act regulations. 

Briefing the special committee on Covid-19, advocate Romeo Maasdorp told the MPLs the status of the judgment was it had moved to the appeal phase after the government filed papers last Tuesday.

News24 reported Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma felt there was a good prospect of succeeding in the appeal.


Filing the appeal has the effect of keeping the current regulations in force, even though the 14 days Judge Norman Davis had given the government from 2 June to amend the regulations were running out.

This as even more businesses, such as hairdressers and the hospitality industry, eagerly await directions on what they may or may not do after President Cyril Ramaphosa announced revisions to Level 3 regulations on Wednesday night.

READ | Hairdressers and restaurants: Here are all the businesses that will reopen

Maasdorp said the appeal, which had been filed, further clarified “there is no vacuum” regarding what was and was not permitted.

“There is no legal vacuum,” he stressed. 

“The De Beer judgment said until such time as regulations have been amended, the law will remain the same. 

“The law continues. If someone has committed a wrong in the sense of violating the regulations, the law will apply until [the] Constitutional Court gives finality and conclusive clarity.”

Maasdorp contended in his opinion, Davis had made findings on cases that were not canvassed in the affidavits submitted. 

He touched on Level 3 regulations when the application itself dealt with Level 4 regulations.

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This was because of the lapse between the time of the application in May, when Level 4 was in place, and handing down judgment when Level 3 came into force.

Maasdorp said this meant the government was not able to respond to the additional Level 3 factors that Davis flagged as problematic in his judgment.

These included limitations on gatherings, not being allowed to walk on a beach, but being allowed to run next to it on a promenade, and funeral rites.

“The judge strayed outside his lane by giving judgment on matters not in front of him,” he added.

Reyno de Beer, the Liberty Fighters Network and Hola Bon Renaissance Foundation were granted a surprise judgment in their favour by the North Gauteng High Court in Pretoria when they challenged the rationality of the Level 4 regulations.

READ | Govt faces another legal challenge over legality of lockdown regulations 

Davis found the order declaring a national disaster in the light of the pandemic was rational, but some of the regulations were not rationally connected to slowing the rate of infection.

He ordered them constitutionally invalid, but because of the danger Covid-19 posed, suspended the order of invalidity.

Davis gave the government 14 days to amend them to be in line with the Constitution and Bill of Rights. The government then lodged an application for appeal to be heard urgently.

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