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Government facing myriad of court challenges over lockdown rules

27 May 2020 - 06:00 By Nomahlubi Jordaan
The Helen Suzman Foundation said parliament and the executive have permitted co-operative governance and traditional affairs minister Dlamini-Zuma, alone or with the national coronavirus command council, to legislate the state's response to Covid-19.
The Helen Suzman Foundation said parliament and the executive have permitted co-operative governance and traditional affairs minister Dlamini-Zuma, alone or with the national coronavirus command council, to legislate the state's response to Covid-19.

Legal challenges against the government are mounting as several opposition parties, teacher unions and civil rights organisations are approaching courts to challenge lockdown regulations and the constitutionality of its decisions.

The Educators Union of South Africa (Eusa) is the latest organisation to join the list of litigants dragging the government to court.

The union is planning to approach the courts on Friday for an interdict against the government's plan to partially open schools on June 1.

Union spokesperson Kabelo Mahlobogwane likened sending children back to school in winter to “genocide” without the necessary safety precautions in place.

“Sending learners to school during winter, when infections will be increasing, is similar to committing a genocide,” Mahlobogwane told TimesLIVE.

He said the union would file an application against basic education minister Angie Motshekga and the department of education at the South Gauteng High Court.

In a separate legal challenge, the Helen Suzman Foundation (HSF) is heading to the Constitutional Court seeking an order compelling parliament and the executive to exercise their “constitutional powers”.

“The HSF desires a restoration of power to parliament and the executive, functioning as each is required by the constitution,” the foundation said in a statement.

According to the foundation, the powers of the executive and parliament have, since the declaration of a state of disaster, have been centralised to co-operative governance and traditional affairs minister Nkosazana Dlamini-Zuma and the national coronavirus command council (NCCC).

“In the aftermath of the declaration of the state of disaster, HSF submits, parliament and the executive ought actively to have taken steps to reclaim their constitutionally assigned roles.

“They have failed to do so. Instead, for two months, they permitted the minister, alone or with the NCCC, to legislate the state's response to Covid-19. They appear content to allow their ultimate authority to be exercised by others, seemingly for as long as Covid-19 poses a threat,” the foundation said.

Cradle of Hope (COH), a charity organisation, will on Tuesday next week, head to the Pretoria high court to challenge guidelines issued by the provincial ministry of social development in early May.

The guidelines prevent the organisation and several others from distributing any food, including the peanut sandwiches it was offering to hundreds of Krugersdorp West residents, many of them children.

“The legality of these guidelines are questionable. They are also at odds with the constitution that guarantees the right to sufficient food and water. The distribution of food must be done within the framework of the regulations, but cannot be made subject to bureaucratic and inconsistent measures,” COH founder and CEO Melodie van Brakel says in her affidavit lodged with the court.

In another matter, the Fair Trade Independent Tobacco Association (FITA) has given government until Tuesday to file the record of decision and any reasons related to the ban on the sale of cigarettes.

The parties are to file and exchange their heads of argument by June 8. The matter will be set down for hearing in the week of June 9.

In its case, Fita argues the government has failed to demonstrate a scientific link between the spread of Covid-19 and smoking tobacco products. It pointed out that comments made by health minister Zweli Mkhize in support of the ban were limited to the general ills of smoking and did not specifically relate to the potentially deadly disease.

“None of the ministers — most importantly, minister of health Dr Zweli Mkhize — has demonstrated how the prohibition of the sale of cigarettes helps in preventing or reducing the spread of Covid-19.”

The Democratic Alliance is set to challenge the “dictatorial madness” of the Disaster Management Act at the Pretoria high court and at the Constitutional Court.

TimesLIVE reported that the party said it would fight to overturn every decision and regulation that is either irrational or immoral until “we have done what President Ramaphosa could not do: end the hard lockdown”.

“There are no rational justifications for a military-enforced curfew, a restriction on e-commerce business and a limited three-hour window for exercise,” said DA interim leader John Steenhuisen.

City Press reported that the party's application at the Constitutional Court was to challenge the constitutionality of the Disaster Management Act, especially its “lack of provision for the importance of upholding the principle of parliamentary oversight over the executive”.