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JUDGMENT OF DE BEER v MINISTER OF COGTA
Download the full judgement of Judge Davis here
Pretoria High Court's judgment in the "Liberty Fighters" case, in summary:
1) The Court was satisfied that there was enough reason for Government to have declared a national state of disaster. (Note the Court did not deal with the issue of whether the NCCC is a valid structure).
2) However, that does not mean that Government can bulldoze over fundamental rights. The end does not justify whatever means.
3) The means (regulations) used to achieve the end (flattening the curve, so our health system can cope with the fall-out of the virus) must be constitutional. This implies that the means must be rational (there must be a rational connection between every particular regulation, and Government's objective). It must also be proportional (go no further than what is absolutely necessary to achieve the objective.)
4) Many of the regulations are neither rational nor proportional, e.g. restriction on exercise times; people can walk on the prom but not on the beach; fact that hairdressers - even with appropriate protocols in place - can't work and not feed their children, but people squeeze together in taxis; fact that you can't visit your friend or family member when they're on death's door , but 50 people can gather for a funeral once the person is already dead. (The Court mentioned other examples as well).
5) Some of the regulations make sense and still stand, e.g. the cautionary regulations relating to education, prohibitions against evictions, initiation practices, and the closure of night clubs, fitness clubs and borders. But many regulations don't and are 'disconnected' from Government's stated objective. (Note that the Court didn't deal with the tobacco issue because that is coming up in a separate court case).
6) AS A RESULT, Lockdown Regulations for Levels 4 and 3 are declared unconstitutional.
7) Government is given 14 business days to go back to the drawing board, carefully consider what is actually necessary to achieve Government's objective, and then write regulations which will not just run roughshod over people's fundamental rights.
8) In meanwhile, the Level 3 regulations stand - but only for 14 business days.
9) Note the judgment didn't deal with Directives issued by various Ministers in terms of the Regulations, but the principle remains - every Clause therein needs to be rationally connected, and proportional, to the end goal. As such, the unconstitutionality of the Level 4 and 3 Regulations may well have a knock-on effect on some of these Directives that may have to be reviewed as well (or are open to similar legal challenge).
Another very well-considered, timely and brave judgment that sets good legal precedent!
#lockdown
Regulations 01 May 2020
WHAT DOCUMENTS MUST YOU PRESENT TO SECURE YOUR FORM 3 PERMIT FROM THE MAGISTRATE TO MOVE YOUR CHILDREN BETWEEN CITIES / PROVINCES:
(i) a birth certificate or certified copy of a birth certificate of the child or children to prove a legitimate relationship between the co-holders of parental responsibilities and rights; and (ii) written reasons why the movement of the child is necessary.
(b) Before a magistrate issues a permit referred to in 17(2) or (3), he or she must be provided with—
(i) A court order
(ii) a parental responsibilities and rights agreement or parenting plan registered with the family
advocate or
(iii) a birth certificate or certified copy of a birth certificate of the child or children to prove a legitimate relationship between the co-holders of parental responsibilities and rights; and (iv) written reasons why the movement of the child is necessary.
URGENT-WITH EFFECT FROM 1 MAY 2020 - NEW REGULATIONS RELATING TO THE MOVEMENT OF CHILDREN
Movement of children
17. (1) The movement of children between co-holders of parental responsibilities
and rights or a caregiver, as defined in section 1(1) of the Children's Act, 2005 (Act No. 38 of
2005), in the same metropolitan area or district municipality is allowed subject to the following if
the co-holders of parental responsibilities and rights or a caregiver is in possession of—
(a) a court order; or
(b) a parental responsibilities and rights agreement or parenting plan, registered with the family advocate
(c) a permit issued by a magistrate where which corresponds with Form 3 of Annexure A if the documentation in paragraphs (a) and (b) is not available.
(2) The movement of children between co-holders of parental responsibilities and rights or a caregiver, as defined in section 1(1) of the Children's Act, 2005 (Act No. 38 of 2005), between different metropolitan areas, district municipalities or provinces is allowed if the co-holders of parental responsibilities and rights or a caregiver is in possession of a permit, issued by a magistrate which corresponds with Form 3 of Annexure A.
(3) Any child who was not at the residence of their primary caregiver before the lockdown period and who could not travel between provinces, metropolitan and district areas during the lockdown will be permitted, on a once-off basis, to return to the residence of their primary caregiver if the co-holders of parental responsibilities and rights or a caregiver is in possession of a permit issued by a magistrate which corresponds with Form 3 of annexure A.
(4) The household to which the child has to move, must be free of COVID-19.
(5) (a) Before a magistrate issues a permit referred to in regulation
17(1)(cJ, he or she must be provided with—
(i) a birth certificate or certified copy of a birth certificate of the child or children to prove a
legitimate relationship between the co-holders of parental responsibilities and rights; and (ii) written reasons why the movement of the child is necessary.
(b) Before a magistrate issues a permit referred to in 17(2) or (3), he or she
must be provided with— (i) A court order (ii) a parental responsibilities and rights agreement or parenting plan registered with the family
advocate or (iii) a birth certificate or certified copy of a birth certificate of the child or children to prove a
legitimate relationship between the co-holders of parental responsibilities and rights; and (iv) written reasons why the movement of the child is necessary.
URGENT UPDATE TO MOVEMENT OF PERSON - Regulations
PLEASE TAKE NOTE OF REGULATION 16(5) AS SET OUT BELOW -
(5) Any person who was not at their place of residence, or work before the lockdown period and who could not travel between provinces, metropolitan and district areas during the lockdown, will be permitted, on a once-off basis, to return to their places of residence or work and will be required to stay in such place until the end of Alert Level 4.
Update- 16 April 2020 - regulations amended on transit of children during lockdown
URGENT UPDATE ON MOVEMENT OF CHILDREN BETWEEN PARENTS DURING LOCKDOWN -
children may move between parents provided that you are in possession of the birth certificate or certified copy of a birth certificate of the child or children to prove a legitimate relationship between the co-holders of parental responsibilities and rights.
The regulation snippet below -
In terms of an amended regulation issued on 16 April 2020 -
(e) the addition of the following subregulations after subregulation (8):
"(9)(a) Movement of children between co-holders of parental responsibilities and rights or a caregiver, as defined in section 1(1) of the Children's Act, 2005 (Act No. 38 of 2005), during the lockdown period, is allowed prohibited, except where arrangements are in place for a child to move from one parent to another, in terms of—
(i) a court order;
(ii) where a parental responsibilities and rights agreement or parenting plan, registered with the family advocate, is in existence, or
(iii) the co-holder of parental responsibilities and rights is in possession of a birth certificate or certified copy of a birth certificate of the child or children to prove a legitimate relationship between the co-holders of parental responsibilities and rights:
Provided that in the household to which the child has to move, there is no person who is known to have come into contact, or is reasonably suspected to have come into contact with any other person known to have contracted, or is reasonably suspected to have contracted COVID-19 in the household which the child has to move to.".
(b) The parent or caregiver transporting the child concerned must have in his or her possession, the court order or the parental responsibilities and rights agreement or parenting plan or the birth certificate of the child or children, as required.
(10) All forms must be completed in full, including full names, identification or passport numbers and full contact details as required in the form and failure to do so will result in the form being rejected as invalid.".
Movement of children between parents during lockdown -Update
URGENT UPDATE - CHILDREN MAY TRANSIT BETWEEN PARENTS IF THERE IS A A COURT ORDER - In terms of Government Gazette 11083 Volume 658 published on 7 April 2020 No 43213, subparagraph (m) of the previous regulations of 30 March 2020 are SUBSTITUTED AS FOLLOWS:
(i) Movement of children between co-holders of parental rights and responsibilities and rights or a caregiver, as defined in Section 1(1) of the Children's Act 2005, during the lockdown period, is prohibited, EXCEPT where arrangements are in place for a child to move from one parent to another, in terms of -
(aa) a Court Order; OR
(bb) where a parental responsibilities and rights agreement or parenting plan, registered with the Family Advocate, is in existence,
provided that, in the household to which the child is to move, there is no person to have come into contact with, or is reasonably suspected to have come into contact with, a person known to have contracted, or reasonably suspected to have contracted, COVID-19;
(ii) the parent or caregiver transporting the child concerned musthave in his or her possession, the court order or the agreement referred to in sub items (aa) and (bb), respectively, or a certified copy thereof.
Movement of children between parents during lockdown is prohibited.
(i) Movement of children between co-holders of parental responsibilities
during the lockdown period is prohibited. This is to ensure that the child
is not exposed to any possible infection whilst moving from primary
caregiver premises to the other;
(ii) The child must remain in the custody of the parent with whom the child
was with, when lockdown period started;
(iii) The parent who is not with the child during the lockdown period may, in
order to maintain a personal relationship with the child, communicate on
a regular basis with the child in any other manner, including telephone
or any other form of electronic communication which may also include
skype, WhatsApp or video call;
(iv) Co-holders of parental responsibilities and rights must communicate with their
child or children including communicating what COVID-19 is and the temporary
precautionary measures that are applied to contain the spread of COVID-19.
Movement of children between parents during lockdown is prohibited.
CHILDREN MAY NOT MOVE BETWEEN PARENTS IN LOCKDOWN -
Please take note that the Minister has clarified this afternoon that children may NOT move between parents during lockdown.
The default, over-arching principle is that we are in a state of national lockdown. In terms of Regulation 11B(1)(a)(i) of the COGTA regulations issued by Dr Dlamini-Zuma on 25 March 2020 under the Disaster Management Act:
“For the period of the lockdown, every person is confined to his or her place of residence, unless strictly for the purpose of performing an essential service, obtaining an essential good or service, collecting a social grant, or seeking emergency, life-saving or chronic medical attention.”
Nelson Mandela Bay attorney nominated for a Woza Icon Award
At the pinnacle of her career, Port Elizabeth divorce attorney Joanne Anthony-Gooden wears many hats as she juggles her thriving practice and charity work, but right now she is mostly proud to be wearing her “mommy hat”. A trailblazer in her field, it was hardly surprising when Anthony-Gooden, 44, received a nomination for a Woza Icon Award, which recognises a woman lawyer who displays iconic achievements embracing thought innovation, leadership, empowerment of other women and contribution to the law...
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Awards
Businesswoman's Association of South Africa awarded Joanne Anthony-Gooden, category winner, in the BWA Regional Business Achiever Awards 2014.