Courts should exercise caution before tampering with the national executive when deciding on the motion to challenge the lockdown that banned religious gatherings in December 2020 and January 2021.
Rusty Mogagabe SC, Legal Adviser to The Minister for Cooperative Leadership and Traditional Affairs, Dr. Nkosazana Dlamini-Zuma, submitted this petition to the Johannesburg Supreme Court on Wednesday in response to arguments from four organizations that launched the challenge.
The South African National Christian Forum, Solidarity Helpende Hand NPC, Freedom of Religion SA (FOR SA) and the Muslim Lawyers’ Association are moving forward to an order declaring the right to freedom of assembly unconstitutional and unlawful.
They are also moving that from the Minister in December 2020 and January Repeal regulations promulgated in 2021 that banned all religious gatherings during these blackout periods.
The minister opposed the motions, saying the matter was controversial because the contested regulations had been replaced by rules that allow faith-based gatherings Allow.
After three days of hearing the parties’ arguments, Judge Bashier Vally reserved the verdict.
Be in In filings on Wednesday, Mogagabe said the court’s rationality investigation cannot evaluate a government policy decision.
“We believe that the courts should exercise caution in this case before intervening on the territory of the government national executive in respect and respect for the sacred principle of separation of powers, “said Mogagabe.
He said there was no set of rules for dealing with the coronavirus pandemic and that the government had to find a way to play its role in protecting people’s lives and respecting other constitutional rights.
“As part of executive policy, the minister has chosen to balance these competing political choices … by means of a temporary no-confidence assemblies that last only as long as the infection rates are unacceptably high.
“As such, the courts should be reluctant to make decisions about d he thwarted the executive in these times of devastating national catastrophe, “said Mogagabe.
However, Solidariteit’s lawyer, Greta Engelbrecht SC, said that it was not good enough for the minister to be without the support of the acts, without the support of information to try to justify their contested decisions in this review.
“Regarding the question of where we are going next, how do we evaluate, even if it is not verifiable according to Paja (Administrative Law Promotion Act) , then we still remain a country under the rule of law and that means that the principle of legality applies, “said Engelbrecht.
She said the minister had to either pass the test under Paja or the rationality test.
“She had to make a record for this and she had to give reasons, and she refused,” said Engelbrecht.
Engelbrecht cited the only reason given for solidarity was that it was comparedto other gatherings it was more difficult to control religious gatherings Disaster Management Act in order to oversee the executive branch in some way.
“So what we have left is a judicial review of the executive branch,” said Crompton.
Crompton said in this case, the government has argued that the matter is contentious and has barely looked into the regulations.
“What we are going to have is an executive without any form of control or balancing, which is the essence of the separation of powers, “said Crompton.