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We received judgment from the SCA today in the Esau vs COGTA Minister lockdown case, and are very happy with the result. The Court held that two crucial Level 4 regulations — the exercise restrictions and hot food ban — were unconstitutional.
(A THREAD)
(A THREAD)
On the exercise restrictions, the Court invalidated the 06h00 to 09h00 window, the limitations on types of exercise, and the 5km radius restriction. The state had no rational reason for these rules and it undermined the point of the regs (social distancing).
On the food regulations, the court found there was no rational reason to distinguish between hot and cold food sales. In Plasket J's words, the distinction between 'a hot piece of chicken and a cold piece of chicken' was 'arbitrary in the extreme'.
We didn't get all the relief we sought, but we're okay with that. Crucially, the SCA was willing to subject the lockdown regulations to the requirements of administrative justice, setting aside those that unjustifiably interfered with our liberty.
Our lawyers say this is also an important precedent in administrative law. The Court said all regulation-making by the Executive is now subject to PAJA. The State will have to be more careful from now on.
We do not plan to appeal any part of the judgment.
We do not plan to appeal any part of the judgment.
We have some thanks to make. Firstly, to all those on Twitter who donated money through our crowdfunding campaign — thank you for your support. The administrative costs of litigation are immense, even when we're not paying lawyer's fees, and you really made this happen.
Secondly, to our advocates, Anton Katz SC, Norman Arendse SC, Kessler Perumalsamy and Erin Richards (among others), who all worked pro bono. Thank you for your commitment to justice.
Finally, to our attorney, Jaryd Kay of Ashersons Attorneys in Cape Town. Thank you for putting in the long hours and always being ready to explain the law to us. You're a credit to your profession and we wish you all the best.
This is where this case started, we have fought for liberty and we will continue to do so in our own capacities.
