By Bongani Nkosi 
Jul 2, 2021
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Johannesburg – The Supreme Court of Appeal (SCA) has shredded the Pretoria High Court’s judgment that declared the lockdown regulations invalid and unconstitutional.
The SCA bench that delivered the scathing judgment on Thursday also wanted the man who dragged Co-operative Governance and Traditional Affairs Minister Nkosazana Dlamini Zuma over the regulations to be criminally prosecuted.
Judges of Appeal Mohamed Navsa, Visvanathan Ponnan, Thokozile Mbatha and David Unterhalter called on National Director of Public Prosecutions Shamila Batohi to consider prosecuting Reyno de Beer for contempt of court.
The call, detailed in Thursday’s judgment, related to De Beer’s letter to SCA President Mandisa Maya that the four judges found to be “clearly contemptuous and intended to denigrate this court”.
Seemingly in protest against the hearing of the matter being held virtually, De Beer told Judge Maya the bench made a charade of what was supposed to be a proper adjudication. De Beer refused to participate in a virtual hearing.
In the letter, he further told Judge Maya that neither she nor any of her colleagues were divine and the court belonged to the people of South Africa.
“Let God’s water run over God’s acre,” De Beer stated in the letter.
The Bbench said while the courts were not above criticism, they resolved to draw a “judicial line” in the sand against De Beer’s “scurrilous insults”.
“In the present circumstances there seems to us to be no alternative but to refer this judgment to the National Director of Public Prosecutions for her attention,” said the judges.
The matter before the four judges was an appeal application Dlamini Zuma brought to set aside a High Court ruling that declared the lockdown regulations invalid and unconstitutional.
Dlamini Zuma’s primary gripe with the June 2020 judgment by Judge Norman Davis was that it went against her despite De Beer’s failure to make a proper case.
Wim Trengove SC, representing Dlamini Zuma, told the SCA during a hearing five weeks ago that De Beer failed to plead coherently how the regulations infringed on the Bill of Rights, but Judge Davis found in his favour.
“We submit, with respect, that the judgment was fundamentally flawed because no attacks were pleaded,” Trengove said at the hearing.
The bench found in favour of this argument. It found that Judge Davis struck down regulations that had not been challenged and “on a case not properly pleaded”.
“Thus, not only was the minister denied a proper hearing, but the respondents were granted relief that had never been sought,” Judges Navsa, Ponnan, Mbatha and Unterhalter said
“In that sense, not only did the judgment suffer a failure of proper judicial reasoning, but it also failed to recognise and respect – as it was constitutionally obliged to do – the limits of the judicial function, and hence the separation of powers.”
The bench also found Judge Davis’s orders poorly written.
“An order of court binds all those to whom it applies. It must therefore be written in a clear and accessible manner.
“Here, aside from the first order striking down the regulations, the remaining orders are vague.”
Dlamini Zuma’s appeal was upheld, a ruling that effectively declared the lockdown regulations valid and constitutional.
“In sum, neither the challenge brought, nor the high court’s reasons for sustaining that challenge can be allowed to stand,” the appeal judges ruled.
The Star