A member of the SANDF at a roadblock during the lockdown. Picture: Henk Kruger/African News Agency (ANA)
A member of the SANDF at a roadblock during the lockdown. Picture: Henk Kruger/African News Agency (ANA)

Institute of Race Relations mulls joining lockdown legal challenges

By African News Agency Time of article published May 20, 2020

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CAPE TOWN - The Institute of Race Relations on Wednesday said it was considering joining pending legal challenges to the Covid-19 lockdown regime, and would write to president Cyril Ramaphosa to warn him about the questionable manner in which it was being enforced.

The think tank said it would advise Ramaphosa to "tread carefully in view of strong and valid legal arguments about the manner of the enforcement of the lockdown".

According to the deputy head of policy research at the IRR, Hermann Pretorius, it was considering joining court cases in the pipeline as a litigant or as an amicus curiae (friend of the court).

The IRR did not specify with whom it would join forces in court, but Pretorius said this "certainly does not exclude" the court action launched by the official opposition to target various aspects of the lockdown.

"The government is facing a litigatory crisis of its own making,” Pretorius said.

He said the IRR had particular concerns as to whether the current infringements, in terms of disaster management legislation, on rights enshrined in the Bill of Rights, satisfied the legal principle of proportionality.

Furthermore, the organisation was concerned that the regulations gazetted by the government in response to the Covid-19 crisis was in line with the requirement that the law should not be vague.

The regulations have been widely criticised as lacking clarity.  

The DA has launched two legal challenges, with the first targeting restrictions of movement and trade, and the second the constitutionality of the Disaster Management Act itself. If the constitutional challenge was successful, it could invalidate all decisions of the National Coronavirus Command Council, which is directing the government's response to the health crisis.

Pretorius said he believed it should be carefully weighed whether the act is open to legal attack, or rather the actions of those relying on it to decree regulations.

He said he believed advocates Erin-Dianne Richards and Nazeer Cassim did the country a great service when earlier this month they wrote to the presidency requesting clarity on the powers exercised by the National Coronavirus Command Council in imposing lockdown regulations on South Africa.

Richards on Wednesday again voiced concern over a lack of adequate oversight of the workings of the council and said this suggested that the executive was abusing its powers under the Disaster Management Act.

“This is where lawfulness and constitutionality matter," she said, adding that there had been seemingly "rampant" abuse of power while parliament failed to exercise oversight.

Richards also warned that government appeared to be using the lockdown not merely to combat the Covid-19 pandemic but as an "opportunity to cement ideology”.

“As for being ethical, I would say no,” she said.

Pretorius said he believed government was losing public support and was likely to lose in court when answering legal action on the lockdown.

"Government continuing on its current course places it and civil society on a path of confrontation – a confrontation the government is set to lose. It is imperative for President Ramaphosa to end his government’s abuse of power and of the Constitution. If President Ramaphosa does not do this, the people of South Africa will do it for him.”

The Fair-trade Independent Tobacco Association (Fita) is challenging the ban on the sale of tobacco products while AfriForum is challenging the constitutionality of using government department's using race-based criteria for extending economic relief during the health crisis. 

The ACDP said on Wednesday it was also considering legal action against the manner in which the lockdown was enforced.

This comes against the backdrop of a political wrangle on easing restrictions.

African News Agency 

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