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Pretoria High Court: Police can no longer enforce the unlawful sale of tobacco

The Liberty Fighters Network (LFN) welcomes Tuesday’s ruling in the Pretoria High Court in which Judge Norman Davis upheld his earlier finding that certain regulations under the Disaster Management Act “are no doubt a clear violation of the Constitution”.

The regulations in question include the restrictions placed on businesses, as well as those on religious and other gatherings. At the same time, the ban on walking on the beach or in public parks, as well as the limited times for exercising, was swept off the table.

Judge Davis ruled that these regulations violate the freedom of movement guaranteed by the Constitution. He was explicit in his finding that the Minister of Cooperative Governance and Traditional Affairs, Dr. Nkosazana Dlamini-Zuma, not allowed to appeal against this part of the original judgment and has 10 days to get rid of it. However, the period is only of academic importance and cannot overturn the court’s ruling that the regulations are invalid.

The LFN president, Reyno de Beer, says the judge has ended the strict seclusion period of more than three months.

In its latest step, the LFN now also issues permits to people joining the network. Accordingly, the carrier of the permit is not subject to the regulations declared unconstitutional. The regulations that are still in force and deal with the ban on expulsions, places and premises that are closed to the public and the closure of borders are not included in the permit.

Adv. Hendrik P van Staden of the National Bar Council says it is correct to say that Judge Davis’s ruling ended the strict seclusion period. He said the judge found in the June 2 ruling that it was a rational decision to declare a national disaster, but that the accompanying regulations aimed at leveling the upward curve of coronavirus infections were not rational.

“The ruling refers to several of the Level 3 and Level 4 regulations that are contrary to Article 36 of the Constitution and are therefore not justifiable in an open democratic society based on human dignity, equality and freedom,” said Van Staden. .

Adv. John Welch of the Gauteng Association of Advocates says the objectives of section 27 of the Disaster Management Act are to protect the public, provide outcome or assistance to them, protect property, prevent and fight disorder, and the devastating effects of a disaster to handle.

He says Judge Davis said in the original ruling the premise (with the drafting of the regulations) was not “how can we as a government limit constitutional rights in the least possible way while still protecting the people of South Africa”, but rather, “we want to achieve our goal whatever the means and regardless of the cost, and we will determine, albeit increasingly, what constitutional rights the people of South Africa may exercise”.

“If you look at the objectives of the enabling law and keep in mind that the Constitution is not repealed or restricted by this law, then it is clear that the government has taken the position” we will do your movements and you and irrespective of your constitutional rights ”.

The LFN was surprised that Judge Davis also excluded regulation 48 (2) from the minister’s application for appeal which means that a violation of the restriction regulations can no longer result in a criminal charge. “For example, wearing masks is still obligatory, but not something that can lead to arrest and criminal prosecution.”

Other regulations included include burial (regulation 35), initiation (regulation 38), access to all events (regulation 39), on-site beverage consumption (regulation 44), and sale of tobacco (regulation 45).

“We believe that although the sale of tobacco is still technically prohibited under regulation 45, the court has now ordered that the sale of tobacco can no longer be prosecuted,” says the LFN’s Reyno de Beer. “The government’s only way to enforce it now is through a civil process. Police and other law enforcement officials are not allowed to enforce the legal sale of tobacco, according to the ruling. ”

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