As citizens get ever more restless stuck at home, disgruntled businesses, religious leaders and politicians are gearing up for legal challenges
The six-week-old national lockdown is facing growing resistance, with various legal challenges set to be launched against it on economic and constitutional grounds.
Tobacco manufacturers, religious leaders, traditional leaders, politicians and businesspeople have formed a convergent view – albeit for different reasons – that President Cyril Ramaphosa’s decision to shut down the country is detrimental to the economy and may not even be in line with scientific evidence and the law of the land.
Chief among the challengers are the tobacco companies, who are seething at government’s decision to go back on a public undertaking to lift the ban on the sale of cigarettes.
British American Tobacco (BAT), the country’s largest cigarette manufacturer, has given Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma, who fronts the Covid-19 National Command Council (NCC), until 10am on Monday to reverse the decision or face court action.
The Fair Trade Independent Tobacco Association, which represents the medium-sized tobacco manufacturers, plans to launch legal action on Monday against the regulations.
The moves to strike down the national lockdown regulations, or parts of them, have gained momentum, with four different institutions writing legal letters to Ramaphosa, threatening to go to court over the “irregular” and “unconstitutional” conditions, as well as the smoking ban.
The state has imposed regulations that would normally be imposed under a state of emergency and not a state of disaster.
National Peace Commission
The lockdown, which was initially supported by most South Africans, has gradually lost favour after government ministers were seen to be sending conflicting messages about when schools would reopen and when the sale of cigarettes would resume, as well as the draconian manner in which the police and army enforced the lockdown.
Thousands of people across the country queueing for food parcels has also raised the alarm about an impending humanitarian disaster if the situation does not improve.
IS THIS A STATE OF EMERGENCY?
A multisectoral coalition, operating under the banner of the National Peace Commission (NPC), has written to the president.
It has objected to the full-scale deployment of military and the police, stating: “The state has imposed regulations that would normally be imposed under a state of emergency and not a state of disaster.”
The NPC includes Christian churches, traditional leaders, business chambers and the corporate sector, as well as rural and informal settlement dwellers.
Presidency spokesperson Khusela Diko on Saturday confirmed receipt of the lawyers’ letter, saying Ramaphosa was still studying the contents to get a better understanding of the legal arguments.
Attorney Thembinkosi Luthuli told City Press that his clients were “looking at the effects of the lockdown on their rights, as outlined in the Bill of Rights, and the impact on the economy”.
“Our clients want more information or a response from government about the state of emergency and the lockdown during this medical crisis situation,” he added.
Two of the country’s prominent lawyers, Nazeer Cassim and Erin Dianne Richards, warned that the lockdown could precipitate a constitutional and democratic crisis.
In a nine-page letter addressed to the president through RHK Attorneys, the two said that the establishment of an NCC, led by Ramaphosa, was questionable.
The impact of this could constitute the “unlawful exercise of executive power”.
They expressed concern “that the NCC only consists of 19 ministers” instead of the full Cabinet, and that its establishment did not accommodate parliamentary oversight.
“The NCC appears to us to constitute a centralisation of power that is impermissible under the Disaster Management Act,” they said.
The letter further points out that shifting executive power from the full Cabinet to the president and 19 ministers “throws the parliamentary oversight mechanisms into complete chaos because it interrupts the ordinary functioning of portfolios, and their committees”.
The lawyers have given Ramaphosa until lunchtime on Tuesday to respond to their concerns, failing which they may take legal action.
In a letter to the presidency, Luthuli said Health Minister Zweli Mkhize should explain the “reasons and justification for an extreme national programme of safety and security – when this was clearly a medical crisis and not the deployment of the military or the imposition of a police state”.
“On the basis of only 60 reported cases, a national disaster was declared – when there is more evidence that for more than five years, more than 60 murders a day were reported in South Africa.”
This was not a priority, he said, but “on the basis of only 60 deaths, after more than five weeks of this military lockdown and an undeniable and an unprecedented destruction of the mainstream economy, the informal sector and all informal settlements have been allowed to continue trading, in addition to the taxi industry”.
In his letter, Luthuli described the lockdown as “draconian” and not supported by evidence-based research from international experts.
Others who had threatened to challenge the legality of government’s regulations in court include official opposition party the DA.
The DA wants to challenge the application of black empowerment legislation in government’s multibillion-rand relief package for businesses that have suffered damage as a result of the lockdown.
“We instructed our lawyers on Thursday to proceed with our application to the high court to seek urgent relief to prevent the unlawful use of broad-based BEE status, race, gender, age or disability as criteria in relation to economic or other forms of relief or assistance. This is a matter of priority,” DA spokesperson Solly Malatsi told City Press.
BAT said the decision to ban smoking had had a disruptive effect on its business.
It had already started preparations to resume operations after Ramaphosa announced last week that cigarette sales would be allowed as of Friday, when the country entered the less restrictive level 4 lockdown.
But on Wednesday, Dlamini-Zuma reversed the ban.
Dlamini-Zuma said her decision was influenced by comments received during public consultations on how government could best regulate public activities during level 4 lockdown.
“Having been prohibited from selling tobacco and vaping products from the commencement of the lockdown, our client commenced preparing for the upliftment of the prohibition,” said BAT through law firm Webber Wentzel.
Covid-19 in numbers
“In a very short period of time, over 10 000 orders were received from retailers wishing to sell tobacco products.”
The lawyers said “the upliftment of the prohibition was celebrated not only by our client, but by retailers and consumers throughout the country”.
They said that, prior to Ramaphosa’s speech last week, BAT had submitted suggestions to government over a “reasonable approach regarding the upliftment of the prohibition on the sale of tobacco and vaping products”.
“They suggested a staged approach in terms of which, at the first stage, the sale would only be permitted at retailers selling other essential goods and only on the understanding that tobacco products would be purchased together with other essential goods. This was to ensure that the sale of tobacco products did not increase congestion in any way,” the lawyers said.
They said when the decision to allow cigarette sales was reversed on the eve of the move to level 4 of lockdown, there was no further consultation with the affected parties.
A lockdown is the absolutely worst way to deal with an airborne respiratory virus.
Attorney Thembinkosi Luthuli
“All those in favour of the upliftment of the prohibition would have seen it unnecessary to comment given the very affirmative and positive statement made by the state president”.
The law firm said its clients had been “severely prejudiced by the prohibition on the sale of tobacco and vaping products. This prejudice has been significantly enhanced by the complete about turn made by you regarding the lifting of the prohibition”.
QUESTIONS ABOUT MOTIVES FOR ‘MILITARY LOCKDOWN’
Luthuli said in his letter to Ramaphosa that “the military lockdown and extreme measures taken by the office of the president and the Cabinet has raised concerns”.
He said the country had a “junk” rating, the economy was in recession, crime was increasing, inner cities were decaying, and there was increasing unemployment and urban migration.
“More than 550 informal settlements in KwaZulu-Natal alone face increasing poverty – it is a decision that defies all basic logic or common sense or common decency to close essential areas of economic growth”.
Luthuli said that extensive international research showed a conflict of interest and a conflict in opinion on Covid-19 that required investigation and responsible action on the part of all governments, including South Africa.
He said international research showed that a “lockdown is the absolutely worst way to deal with an airborne respiratory virus”.
He added that evidence-based information suggested that a lockdown actually causes more severe ailments — both physical and psychological.
He said other experts had found the that the figures have in some cases been manipulated and that the lockdown prolongs the stay of the virus in the community.
He said “there was ever-increasing speculation over the origins and motives for the military lockdown that are not in the best interests of the country and the people and their future needs to be clarified.
“The need for transparency cannot be denied and the desperate need for accountability cannot be ignored,” said Luthuli.
In the absence of a response, “our clients will seek the necessary relief and will approach the Constitutional Court to declare the lockdown procedurally irregular in terms of the Disaster Management Act”.