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Regulations declared invalid

Regulations declared invalid

Dear employer

On June 2 2020, the High Court of South Africa declared the regulations issued in terms of the Disaster Management Act, for Alert levels 3 and 4, to be invalid.

The Court found that, although the regulations are not illegal, a large number of regulations contained therein failed to meet the rationality test. In terms hereof, for an administrative action by government to be valid, there must be a rational connection between the act and the reason for the action or the purpose that it is aiming to achieve. It is not required that the goal should, in fact, have been achieved, but simply that there should be a rational connection.

The Court ultimately found that, although the constitutional rights of persons may be infringed, such infringement or limitation must be justifiable in terms of section 36 of the Constitution of South Africa. In light of the fact that the regulations have been found to be irrational, it can never be said that such a limitation of fundamental rights, as contained in the Bill of Rights, was justified.

The Court, however, suspended the order for a period of 14 business days in order for government to review, amend and republish the regulations with due consideration to the limitation that each regulation has on the rights guaranteed in the Bill of Rights, as contained in the Constitution.

Therefore, as the Covid-19 pandemic is still with us, the regulations as published for Alert Level 3 remain in full force and effect until they have been amended as set out above.

It should be noted that this order specifically excluded the regulation pertaining to the sale of tobacco products, as it is subject to a separate application before a full bench of the High Court.

In a separate matter, The High Court confirmed on Monday that a CIPC certificate is not a requirement for businesses to operate under Alert Level 3. The only requirement is that employees who travel across district-, metropolitan- or provincial borders for work purposes, must be in possession of a permit, issued by the employer, that complies substantially with Form 2.

We will keep members abreast of developments as they unfold.

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