Government has maintained that its decision to close certain beaches in hotspot areas as a second wave of Covid-19 infections continues to grow is temporary, rational and justifiable, and therefore it is legally compliant even if it limits other rights.
As South Africans kicked off the festive season, President Cyril Ramaphosa announced that certain beaches and public parks will be closed over the festive season, citing a dramatic increase in confirmed Covid-19 cases.
All beaches in the Eastern Cape and along the Garden Route were closed as they are considered hotspots, while in KwaZulu-Natal beaches will be closed on what are “traditionally the busiest days of the season”.
These new regulations, promulgated under the Disaster Management Act (DMA), led to AfriForum and the Great Brak River Business Forum approaching courts in a bid to have the beach-related regulations declared unlawful and unconstitutional.
The matter is expected to be heard in the Gauteng High Court in Pretoria on Tuesday.
It was argued that the regulations will have a devastating impact on the economy, limit economic and tourism activity and thus impact on freedom of trade, as enshrined in the Constitution.
The regulations also impact on freedom of movement, it was argued in court papers.
Furthermore, government failed to provide substantiating reasons for the decision to close beaches, as well as the evidence on which it was based.
Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma has hit back in an answering affidavit, arguing that the beach closures are temporary and justified in the context of the second wave of Covid-19 infections that is exacerbated by the fact that it is happening during the festive season.
Dlamini-Zuma maintained that rights pertaining to dignity and freedom of expression were not impacted by the impugned regulations and because the beach closures and limitations are temporary, they do not infringe on freedom of movement.
Regarding the right to freedom of trade, Dlamini-Zuma said the regulations do not infringe on the right to choose any particular profession.
Government has also dismissed the argument that it had not consulted the affected parties before announcing the regulations.
“The Disaster Management Act does not provide for a public participation process before making disaster management regulations. I am only required to consult required Cabinet ministers, which I did,” Dlamini-Zuma said.
In terms of scientific participation in the decision to close beaches, Dlamini-Zuma said the Medical Advisory Council (MAC) was approached for their input and had identified different options.
She added that there was not categoric right or wrong view to these options.
According to government, these were the options identified by the MAC: Close all beaches for the duration of the holiday period.Close beaches on certain dates when large crowds are anticipated.Allow municipalities to decide and manage beach closures if necessary.
Government is facing several other challenges relating to the latest regulations, including one by the Democratic Alliance.
Since the DMA came into effect earlier this year, there have been other legal challenges on the rationality of some of the regulations, including the banning of tobacco products, which was found to not be rationally connected to government’s objectives in handling the pandemic and was thus set aside.
In many of these challenges, including the beach closures, government has maintained it is constitutionally obligated to prevent Covid-19 from killing hundreds of thousands of people in South Africa and that it must uphold the right to life.