AfriForum’s urgent bid to challenge lockdown curfew dismissed

The North Gauteng High Court on Tuesday dismissed AfriForum’s urgent bid to have the national curfew declared unconstitutional and set aside.

South Africa’s current curfew during level 1 lockdown is between midnight and 4am.

AfriForum approached the courts after Minister of Co-operative Governance and Traditional Affairs Nkosazana Dlamini-Zuma did not respond to its demands to provide evidence on which the decision to institute the curfew was based.

In a letter to Dlamini-Zuma, AfriForum requested the following:

• To be provided with written reasons why there are curfews as well as supporting evidence that curfews are an effective precautionary measure against Covid-19;
• To be provided with the documents and supporting documents, expert reports, evidence and data which supports the decision to enact curfews;
• That the implementation of national curfews be ceased with immediate effect.

Gauteng Deputy Judge President Aubrey Ledwaba, however, ruled there was no justification for the matter to be heard on an urgent basis and struck the matter off the roll.

“I agree that the curfew does have an impact on the income of nightclubs especially during the festive season. However, I believe the question of the curfew is not solely directed to disempower the nightclubs financially. I don’t see any reason why this issue has to be dealt with urgently and it needs to be properly ventilated. There are constitutional issues involved in this matter,” Ledwaba said. 

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AfriForum had argued that the festive season was critical to the hospitality and entertainment industries.

“The festive season is of paramount importance in the annual financial cycle of business along the coast. The curfew places a burden on them by restricting their trading hours. This is particularly severe for bars, taverns, and nightclubs that would typically trade after 11pm,” the organisation said.

“The damage to the hospitality and entertainment industries has been keenly felt and will be lamented for many years, but the permanence of the unemployment and socioeconomic consequences constitute damage that the whole of SA simply cannot afford.”

AfriForum said removing the curfew would give businesses a chance to make a profit during the festive season.

It also said the curfew violated human rights.

“Section 21(1) of the constitution provides that everyone ‘has the right to freedom of movement’. This includes the right to move freely throughout the country.”

“At the same time, by placing such a fundamental restriction on peoples’ autonomy and freedom of choice, reg 16 also infringes the right of everyone to human dignity in terms of section 10 of the constitution,” AfriForum argued.

Dlamini-Zuma’s legal representative, Advocate Hamilton Maenetje, argued there was no reason for the matter to be heard on an urgent basis.

“This is a matter of significant constitutional importance and it effects the lives and health of South Africans. AfriForum had ample time to approach the court on this matter to ventilate these issues,” he said. 

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