Ordinary citizens approach court over 'unjustified' Covid-19 regulations
Eight ordinary citizens - four students, a civil servant, a media intern, a research assistant and a data analyst - are expected to urgently approach the Western Cape High Court at the end of next week to declare the National Coronavirus Command Council unconstitutional.
In their application against the government, they are asking for an order that the command council is inconsistent with the Constitution and that it is acting unlawfully, especially some of the decisions it makes.
They are asking in the alternative that the court must declare the disaster regulations invalid and the government be given 30 days in which to correct the constitutional defects in the disaster regulations.
Advocates Nazeer Cassim and Erin Richards recently questioned the validity of the structure, and threatened to take the matter to court in their personal capacities. They, however, abandoned this after it emerged ordinary citizens had taken on this plight.
University of Cape Town student Duwayne Esau said, in an affidavit filed at court, that the government had imposed a regime of regulations in its bid to limit the spread of the virus, which had made unprecedented inroads into the constitutional rights guaranteed by the Bill of Rights.
“Some aspects of the regime, though onerous, may be justified to limit the spread of the virus.
"Unfortunately, many other aspects of the regime cannot be justified and bear no rational link to the objective of limiting the spread and impact of Covid-19,” he stated.
He pointed out the imposed regulations ban movement, it stifles economic activity and limits consumer choice.
Esau said many of the regulations simply hold no connection to combating the virus. It rather holds a disregard for the rights of South Africans.
He said the government's decision-making processes had been marked by an opacity that contradicts the country’s founding values of openness and accountability.
He said it was most worrying that the national command centre was making all these important decisions, while we hardly knew anything about this structure, such as how big it was and who were all its members.
Esau said they would argue to the court, as well as supply reasons, as to why the command council and its involvement in the governance of South Africa was unlawful.
He made it clear that this application was not about attacking the reasonable measures the government had put in place to try to combat the spread of the virus.
They were only attacking the nonsensical directions, such as regulating which clothing people would buy, he said.
Esau said the applicants had the uppermost respect for President Cyril Ramaphosa’s dedication to combat this pandemic, but by doing this, the government should adhere to the rule of law and be transparent.
The applicants will challenge the constitutional validity of the command council, and argue that it has no decision-making powers.
“Yet, it has seemingly managed and made decisions affecting all South African’s rights.”
Some of the restrictions simply do not make sense, as there is no evidence to show that one has a lower risk of contracting the virus if one only leaves the house to buy permitted goods.
One also does not increase the risk of spreading the virus by buying hot food instead of cold food or buying summer clothes instead of winter clothes.
There is also no link between exercising in the 6am and 9am time slot and the spread of the virus. If exercise is permitted for three hours a day, it should be permitted throughout the day, he said.
Another question posed in the application is why movement between provinces and districts be permitted for funerals, but not for family emergencies.
He said it was clear the government needed judicial guidance on the constitutional rights of the citizens of this country that may not be infringed while trying to fight the pandemic.
The government has not yet filed any opposing papers.