Court cases are piling up against government lockdown

Written by Ciaran Ryan. Posted in Journalism

These cases won’t go away, even if lockdown is lifted, as government is seen to have over-stepped its powers. From Moneyweb.

Image: Shutterstock
Several groups want the courts to place a limit on government powers to impose a lockdown

Nearly two months into the Covid-19 lockdown and the court cases against government are mounting.

The Democratic Alliance is the latest to drag the government to court, challenging the 8pm to 5am curfew, the restrictions on the times public transport may operate, the ‘exercise window’ between 6am and 9am and restrictions on e-commerce.

Civil society group DearSA claimed a key victory on Thursday when the government eased all restrictions on e-commerce, except for cigarettes and alcohol. This was after the group threatened urgent court action unless government responded by Thursday May 14, 2020 to its request for all forms of online trading to be permitted, and outdoor exercise to be allowed during daylight hours instead of three hours in the morning.

In a statement issued on Thursday, DearSA says this is a major victory for civil society, but that the economic health of the country is deepening as the lockdown prolongs. It added it’s illogical to assume that the restrictions on e-commerce could possible slow the spread of the virus.

“As the lockdown progresses, South Africans are understandably concerned at the impact it is having on their lives and on the economy, and we know this because of the surveys conducted on a regular basis by DearSA,” says Daniel Eloff of attorneys Hurter Spies, which is representing DearSA. “There is growing frustration at the needless harm that is being done to the economy and small businesses by the extension of the lockdown to e-commerce platforms.”

Human rights advocate Mark Oppenheimer, who is advising DearSA, says rather than challenge the entirety of the lockdown, the decision was made to tackle ‘low-hanging fruit’ such as the e-commerce ban. “I’m glad that so may people are joining the fight. I have a feeling that someone will challenge the lockdown on a broader front, but our decision to tackle just a part of it has borne fruit.”

Fair-trade Independent Tobacco Association (Fita) is also challenging the government on the ban on cigarette sales. It also declared a partial victory, after government agreed that the manufacture and sale of cigarettes has always been permitted under current lockdown regulations. However, factories are limited to 30% staffing.

Fita had asked the Joburg High Court for a “declarator” that the export of tobacco products and cigarettes is not prohibited, and that cigarette manufacturing can resume. Tobacco manufacturers had closed their factories in response to contradictory statements snd threats from ministers that now appear to have been without any basis in law.

What Fita also managed to tease out of government is that the National Coronavirus Command Council (NCCC) does not vote on matters and certainly no vote was taken on the ban on cigarette sales specifically.

The next phase of the fight is to get a record of decision from government, along with reasons, for deciding to ban cigarette sales. With this in hand, Fita is expected to challenge the lawfulness of the ban and seeks to have it overturned. The reasons for the ban given by government cite “health reasons” – rather than slowing the spread of virus – which Fita’s legal team has argued has no basis under the Disaster Management Act. If cigarette sales are banned for health reasons, the same rationale could be used to ban the sale of chocolates and fizzy drinks.

Earlier this month trade union Solidarity teamed up with AfriForum to approach the Constitutional Court on an urgent basis to appeal a high court judgment allowing the Department of Tourism to give preference to BEE businesses struggling to survive as a result of the Covid-19 crisis.

Solidarity’s chief executive Dirk Hermann said the awarding help based on race is bizarre. “It is scary that there could be Constitutional grounds in a crisis like this which allows the allocation of emergency funds to take place based on race.”

AfriForum chief executive Kallie Kriel says the organisation decided to approach the Constitutional Court directly, as the small tourism businesses owned by members of minority groups, just like all other small tourism businesses, are in urgent need of assistance. “If the case drags on, countless small white-owned businesses will go under and government will be complicit. Figuratively, it is economic murder of minorities,” according to an AfriForum statement.

The organisation says it wants legal clarity on whether discrimination against whites is permitted, even in times of crisis, and will approach the United Nations’ Committee on the Elimination of Racial Discrimination if its efforts do not bear fruit in the local courts.

Fita, too, says it plans to continue with its case even if the ban on cigarette sales is lifted. “There is a legal principle we need clarified,” says Fita chairperson, Sinenhlanhla Mnguni. “Even if the ban is lifted, we could once again find ourselves in Alert Level 5, and we cannot take that chance where our members’ businesses can be shut down by a minister, based on irrational decision-making or poor data.”

The DA papers before the Pretoria High Court points to the economic cost of the lockdown: between three and seven million jobs could be lost, depending on how long the lockdown lasts; one-third of the resources that were productive in February this year are now lying idle; and the average daily transactions through the payments system is down by half.

The Freedomfront Plus (FF+) party is also taking government to court on an urgent basis “to challenge the validity of the National Disaster Management Act and to request the court to find that the government is abusing the Act, which will mean that the announced state of disaster and the associated regulations are unconstitutional.”

The FF+ says it has become evident that the government is abusing its powers by invoking the National Disaster Management Act instead of the State of Emergency Act, which places limitations on the length of time allowed for a state of emergency, while requiring parliamentary approval and oversight on regulations. It wants the government to disclose the data on which the state of disaster is based and the reasons behind the timelines for the different levels of lockdown were determined.

The original reasons for the lockdown appear to have achieved their primary aims. Why then, does the lockdown still continue, the party wants to know.

This is likely just a taste of what’s to come in the next few weeks as the level of desperation resulting from the lockdown plumbs new depths, along with open defiance of the lockdown (which is already happening as many businesses reopen regardless of the consequences).

Ciaran Ryan

The Writer's Room is a curated by Ciaran Ryan, who has written on South African affairs for Sunday Times, Mail & Guardian, Financial Mail, Finweek, Noseweek, The Daily Telegraph, Forbes, USA Today, Acts Online and, among others. In between he manages a gold mining operation in Ghana, and previously worked in Congo. Most of his time is spent in the lovely city of Joburg.