Government’s Covid Council faces yet another legal challenge

A group of concerned citizens in the Western Cape has launched a fresh attack on government’s response to the Covid-19 pandemic.

On Wednesday, the group filed papers in the Western Cape High Court challenging the constitutionality of the National Coronavirus Command Council (NCCC) together with the latest lockdown regulations as well as the recently published directions outlining the clothes and homeware that could be sold during Level 4 of the lockdown.

“Each of us have had our freedom curtailed by the regulations. We no longer enjoy the freedom to move around as we please, to eat and drink what we want, to work and study as usual and to visit our friends and families,” the group said in a statement.

“The regulations have also impacted upon our human dignity. One of us was unable to attend the funeral of his grandmother in another province. A number of us have serious concerns about the financial security of our families moving forward, as firms go under and millions lose their jobs as a direct result of the regulations.”

In a founding affidavit deposed to by Duwayne Esau, the University of Cape Town student charged that the NCCC had “no legal validity and no decision making powers”.

“Even if the council is not found to have made binding decisions – contrary to numerous public documents, media statements and other communications by the president and members of the Cabinet – then in any event, it is unlawful and an invalid usurpation of parliament’s choice as to which body manages national disasters,” he argued.

“Parliament has determined that it is the national Disaster Management Centre that manages national disasters. It is not open to the executive to ignore parliament’s intention and create a parallel structure such as the command council”.

Esau also said that “certain violations of rights occasioned by the enactment of the disaster regulations” were unfairly made and inconsistent with the Disaster Management Act.

“The clothing directions …. deal with the minutiae of what bedding, clothing and footwear retailers may sell. They also do nothing to prevent and combat the spread of Covid-19 – there is no rational link between fighting the pandemic and the retailing of summer clothing, peep-toe shoes, t-shirts or any of the other prohibited categories of apparel,” he added.

Esau emphasised that, in the main, the application did not seek to set aside the regulatory regime put in place to combat Covid-19.

Instead, he said, it sought to cure constitutional invalidities in the regulations and to have the court “vindicate the constitutional vision of a free and dignified citizenry and a government that is caring and respectful rather than controlling and authoritarian”.

“This application comes at a critical juncture. When the [government] first imposed the national lockdown, it was expected to last for three weeks … However the lockdown was extended for a further two weeks, and then retained (with minor amendments) as ‘Alert Level Four’. Now almost two months later, the president has announced that he intends for some parts of the country to move to level three with effect from 1 June 2020, while the urban hubs remain at level four,” Esau said.

“There is no end in sight. Each new day sees the continued negation of South Africans’ autonomy and freedom, fresh reports of some in the armed forces brutalising residents in order to ‘enforce the lockdown and new directions from Cabinet members telling us what we can eat, what we can buy, how we can dress and when we can leave our homes.”

The matter is expected to come before the court later this month.

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