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Esau and Others v Minister of Co-operative Governance and Traditional Affairs and Others (5807/2020) [2020] ZAWCHC 56

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Esau and Others v Minister of Co-operative Governance and Traditional Affairs and Others (5807/2020) [2020] ZAWCHC 56

26th June 2020

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1. Applicants seek, inter alia, the following relief:

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1.1. Declaring that:

1.1.1 the establishment and existence of the sixth respondent (the Command Council') is inconsistent with the Constitution of the Republic of South Africa, 1996 ('the Constitution') and the Disaster Management Act 57 of 2002 ('the Act'), and is invalid;

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1.1.2 alternatively, to the extent that the Command Council purports to duplicate and/or supplant the functions of the National Disaster Management Centre established in Chapter 3 of the Act, the Command Council acts unlawfully and in a manner that is inconsistent with the Constitution and the Act;

1.2. Declaring that any decision taken or purported to have been taken by the Command Council in relation to any matter in terms of the Act is unconstitutional and invalid.

1.3. Declaring that —

1.3.1. the Disaster Regulations issued in terms of section 27(2) of the Act published under Government Notice No. R. 480 in Government Gazette 43258 of 29 April 2020  (‘the Disaster Regulations’) are unconstitutional and invalid;

1.3.2. alternatively, regulations 16(1) — (4), 28(1), 28(3) and 28(4), read with Part E of Table 1, of the Disaster Regulations are unconstitutional and invalid.

1.4. Suspending the declaration of invalidity referred to in paragraph 1.3.1 above for a period of 30 calendar days from the date of this order.

1.5. Directing the first respondent to correct the constitutional defects in the Disaster Regulations within 30 calendar days of this order.

1.6. Declaring inconsistent with the Constitution and invalid, and reviewing and setting aside, the 'Directions regarding the sale of clothing, footwear and bedding during alert level 4 of the Covid-19 national state of disaster, published by the third respondent under Notice R. 523 in Government Gazette 43307 of 12 May 2020.

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