South Africa

STATE OF DISASTER

Another lockdown challenge heads to ConCourt

The signals are that the lockdown is unlikely to end before 2021, says the writer. (Photos: EPA / Nic Bothma | Roger Sedrus / Gallo Images / Getty Images | Gallo Images / Brenton Geach | Sharon Seretlo / Gallo Images via Getty Images)

The Constitutional Court has received another application for direct access on a legal challenge to the Covid-19 lockdown regulations and the National Coronavirus Command Council (NCCC). It is one of several such matters as Saturday marks Lockdown Day 100.

On Wednesday 1 July the paperwork was filed at the Constitutional Court to have the Covid-19 lockdown regulations as published on 29 April declared inconsistent with the Constitution, and thus invalid.

However, the application asks the Constitutional Court to set aside an order of invalidity so the co-operative governance minister can “remedy the constitutional defect” within 30 days. That’s for all but the sales of clothing, footwear and bedding regulations published by Trade and Industry Minister Ebrahim Patel. Those should just be declared unconstitutional, invalid and be set aside.

The application cites Co-operative Governance Minister Nkosazana Dlamini Zuma and President Cyril Ramaphosa in both their Cabinet roles, but also as co-chairpersons of the National Coronavirus Command Council (NCCC), which is cited as sixth respondent.

The bid for direct access to the Constitutional Court by seven university post-graduate students and researchers was made after a defeat in the Western Cape High Court as Judge Rosheni Allie, with the concurrence of Judge Elizabeth Baartman, dismissed the initial application last Friday, 26 June.

The judges ultimately had not agreed with the arguments made in a virtual hearing some two weeks earlier on how the NCCC, which, according to at least two presidential addresses to the nation had “decided” on certain lockdown actions, was in fact, not empowered to do so.

Nor did the judges agree with advocate Anton Katz’s arguments that the lockdown regulations failed to meet the test of rationality – and because of their irrational character should be scrapped. 

“We bring this application in order for this court to vindicate the constitutional vision of a free and dignified citizenry and a government that is caring and respectful rather than controlling and authoritarian,” said Duwayne Esau in his founding affidavit.

“The regulations imposed… ban movement, stifle economic activity and limit consumer choice. Many of the regulations are characterised by two things: (i) a lack of any rational connection to the objective of combating the pandemic and (ii) a disregard for South Africa’s fundamental rights to, among other things, human dignity and freedom of the person.”

That’s the case that could go to the Constitutional Court – if direct access is granted.

Already granted direct access are the Helen Suzman Foundation and the DA for their challenges to the Disaster Management Act.

This law was used to declare the State of Disaster on 15 March, and to renew the State of Disaster after the initial maximum three-month period for another month to 15 July. When government announced this first one-month extension in early June, Minister in the Presidency Jackson Mthembu indicated it may not be the last extension

“We can extend on a month to month basis. The Cabinet has resolved after the expiration of the initial three months, we will extend it by another [month]. If there is a need for us to extend again in July, based on scientific evidence, we will do so. Because the law allows us to extend month by month.”

Aside from these two legal challenges in the Constitutional Court, the Freedom Front Plus on Friday argued its case against the Covid-19 lockdown and Disaster Management Act in the Pretoria High Court.

On Wednesday, that court granted Dlamini Zuma and Ramaphosa leave to appeal against the judgment declaring most Covid-19 lockdown regulations invalid, but giving the co-operative governance minister 14 days to remedy the regulations to bring them into constitutional compliance.

“… Their [the regulations’] encroachment on and limitation of rights guaranteed in the Bill of Rights contained in the Constitution are not justifiable in an open and democratic society based on human dignity, equality and freedom,” Judge Norman Davis had ruled on 2 June, on Day 68 of the lockdown, because the overwhelming number of rules had failed the test of rationality.

Batsa publicly said it was “inexplicable” and “worrying” how after submitting its replying court papers to government, specifically Dlamini Zuma and Ramaphosa, the urgent application agreed to be heard on 30 June was delayed by six weeks.

The ruling sparked quick action by Cabinet to agree to an appeal not only by the minister – Dlamini Zuma had left it to her director-general to file court papers – but also by the president.

According to Business Day, Judge Davis granted leave to appeal on the broad sweep finding of invalidity, but required the review and amendment of the specifically mentioned regulations – from hairdressers to exercise – to bring these into the constitutional fold within 10 days.

It was a 50:50 win for government, which on Wednesday in the Pretoria High Court won against the One South Africa Movement and its leader Mmusi Maimane, the former DA leader, who had wanted to end learners’ return to school.

The legal battle over the sale of cigarettes is set to continue only from 5 August after an acrimonious spat between government and British American Tobacco (Batsa) over last-minute changes to the hearing date.

Batsa publicly said it was “inexplicable” and “worrying” how after submitting its replying court papers to government, specifically Dlamini Zuma and Ramaphosa, the urgent application agreed to be heard on 30 June was delayed by six weeks.

Dlamini Zuma hit back. 

Government does not have control over the scheduling of court hearings, and it did not attempt to exercise any such control in this case,” said Dlamini Zuma’s spokesperson, Lungi Mtshali.

Batsa persisted with its request that the matter be heard on 30 June. The judge president rejected Batsa’s request, set the matter down for hearing on 5 and 6 August and assigned three judges to hear it.”

All that played out on Friday 26 June, the same day the Fair Trade Independent Tobacco Association (Fita) lost its legal challenge to have cigarettes declared essential, and thus have the ban on tobacco sales lifted, after the court effectively found cigarettes were restricted like many other goods and services. 

There may be an appeal. Already government is facing more than 90 legal challenges, according to Dlamini Zuma’s briefing to the National Council of Provinces on 24 June, although her office confirmed without details, 116 challenges, of which 84 had been finalised, according to TimesLIVE.

More cases may well be filed.

Right now, the signals are that the lockdown is unlikely to end before 2021.

Tourism sources have indicated the Covid-19 lockdown would only be eased to Level 1 – when interprovincial leisure travel would be permitted – towards the end of the year, or possibly early in 2021.

South African National Defence Force documentation seen by Daily Maverick shows the extension of soldiers’ deployment until New Year’s Eve 2020. DM

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