New legal challenges against South Africa’s lockdown rules

The Democratic Alliance (DA) has filed an affidavit with the North Gauteng Division of the High Court seeking an order to declare the decision to close schools unlawful.

The opposition party noted that president Cyril Ramaphosa’s announcement around the closure of schools has not yet been published in the government gazette.

It is, therefore, arguing that the announcement has no legal effect and that schools should therefore technically not have closed as there is no legal requirement for them to do so.

“Gazetted regulations contain carefully described powers, rights and obligations,” the DA said.

“They also clearly specify which regulations or directions they repeal or amend. In contrast, an announcement, such as the President’s is not aimed at describing rights, obligations and powers – it is usually a political document aimed at justifying a position or influencing public opinion.

“South Africa is a constitutional democracy and not an authoritarian state. The executive is, therefore, not permitted to legislate by decree without properly exercising statutory powers through publication in the Gazette – as this ultimately undermines the rule of law.”

The DA said that neither the president nor cabinet, have the legal powers to close schools.

It added that Basic Education minister, Angie Motshekga, cannot claim that the decision to close schools was hers either because the press release in which she welcomed the announcement, expressly described the decision as one made by cabinet.

South Africa’s public school students begun a four-week break from physical teaching on Monday (27 July) amid a surge in coronavirus cases.

Ramaphosa said that while this break will extend from 27 July – 24 August, some grades will return at an earlier date, including:

  • Grade 12 learners will only take a one week, returning on 3 August;
  • Grade 7 learners will only take a two-week break and will return on 10 August;
  • Special considerations will be made for special needs schools.

The president said that due to the delay, the current academic year will also be extended beyond the end of 2020. Further information, he said, would be gazetted at a later date.

A number of grades have also not returned to school since the introduction of restrictions in mid-March, with some grades only set to return as late as September.

As part of a staggered return plan, Grade 7 and Grade 12 students returned at the start of June, while Grade R, Grade 6 and Grade 11 students returned at the start of July.


Cigarette sales ban 

In a separate case, British American Tobacco (Batsa) is arguing that the prohibition on the sale of cigarettes and other tobacco products is unconstitutional.

Among other points, Batsa says that section 10 of the constitution provides that ‘everyone has the right to inherent dignity’ which extends to autonomy and the ability to make their own choices.

The group also argues that the ban violates the right to privacy, the right to bodily and psychological integrity, and the rights of tobacconists and tobacco farmers to practice their trade.

Batsa has also questioned the reasons given by Cooperative Governance and Traditional Affairs (Cogta) minister Nkosazana Dlamini-Zuma for the ban, including the ‘health risks’ associated with smoking and Covid-19.

“We submit that the minister’s justification is – to use a metaphor that is particularly apposite here – an exercise in smoke and mirrors,” the group said in its court papers.

“Even if a series of assumptions were to be made in favour of the Minister regarding the health risks of smoking in relation to Covid-19, the “benefits” on which the minister relies would still be heavily outweighed by the harm caused by the prohibition.

“We shall show that, on the minister’s own version, the public-health ‘benefits’ are miniscule when weighed against the massive harm caused to smokers, to participants in the tobacco supply chain and to the fiscus.”

The sale of tobacco products, including cigarettes, has been prohibited since the country first introduced a lockdown at the end of March.

The ban has been in place to protect the health of South Africans, according to submissions from the government, and cigarette producers have failed to convince the country’s courts that the sale of tobacco products is a necessity.

Ramaphosa has insisted that the prohibition is not a ‘ban’ but rather a suspension that will be ‘resolved’ as the country moves to a lower alert level.


Read: South Africa could also turn to the World Bank for funding if required: Mboweni

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New legal challenges against South Africa’s lockdown rules