On Wednesday 20 May 2020, five University of Cape Town students together with a data analyst, a media intern and a civil servant filed papers in the Western Cape High Court challenging numerous aspects of the South African government’s interventions in relation to the covid-19.
This is a summary of that application. I express no view on its merits.
The students want the Cape High Court to hear their application on Friday 29 May 2020. They have given the respondents until Monday 25 May 2020 to file their opposing papers.
The application is brought against
- The President of South Africa, both in his capacity as President and as Chair of the National Coronavirus Command Council (the Command Council)
- Minister of Cooperative Governance and Traditional Affairs (COGTA) both in her capacity as COGTA Minister and as Co-Chair of the Command Council
- Minister of Trade, Industry and Competition
- Government of South Africa
- Command Council
- National Disaster Management Centre
The Relief Sought
In a nutshell, the students want the Cape High Court to declare
- that the establishment and existence of the Command Council is unconstitutional and invalid
- that even if it were constitutional and valid, its actions are unlawful and unconstitutional
- that any decision taken by the Command Council in relation to any matter in terms of the Disaster Management Act, 2002 (the DMA) is unconstitutional and invalid
- that the Regulations issued by the COGTA Minister on 29 April 2020 are in their entirety unconstitutional and invalid
- that, if the court should find that not all these regulations are invalid and unconstitutional, then the curfew and movement regulations [regulations 16(1) to 16(4)] and the economic restrictions regulations [regulations 28(1), 28(3) & 28(4)] are unconstitutional and invalid
- that the directions issued by the Minister of Trade, Industry and Competition on 12 May 2020 in relation to the sale of clothing, footwear and bedding are unconstitutional and invalid and are set aside
- that the President is given 30 days from the date of the court order to correct the constitutional defects in the 29 April 2020 Regulations
- that the declaration of unconstitutionality is suspended for 30 days to enable the President to correct the defects identified within those 30 days
They want only those respondents who oppose the application to be ordered to pay the costs of the application.
Grounds for the Relief Sought (at a Glance)
The students say the establishment and existence of the Command Council is unconstitutional and unlawful because the Command Council purports to step into the shoes of, and usurps the powers already conferred by Parliament through the DMA on, the National Disaster Management Centre. In this respect they say
- According to an explanation given by the Director-General in The Presidency, the role of the Command Council is to “coordinate” government’s response to covid-19 and “facilitate consultation”.
- But these are precisely the functions that Parliament has determined should be discharged by the National Disaster Management Centre. One of the functions that Parliament confers on the Centre in s 30 of the DMA is that the Centre
“must act as a repository of, and conduit for, information concerning disasters, impending disasters and disaster management … may act as an advisory and consultative body on issues concerning disasters and disaster management [and] make recommendations to any relevant organ of state or statutory functionary on draft legislation affecting [the DMA], the national disaster management framework or any other disaster management issue”
- The Command Council has usurped the role of the Centre in respect of the covid-19 pandemic. This is unlawful because it is inconsistent with the DMA and subversive of Parliament’s legislative authority.
They say all the 29 April 2020 Regulations are unconstitutional and invalid because they were conceived, at least in part, by a body that has no power to do so. In this respect they say
- It is clear from numerous ministerial and presidential statements that the Command Council has made decisions, including the decision to move the country from Level Five to Level Four as from 1 May 2020.
- But the Command Council has no power to make such decisions, whether under s 27 of the DMA or elsewhere.
- Therefore the 29 April 2020 Regulations are vitiated by the Command Council’s unlawful hand in their making.
The students say the curfew, movement and economic restriction regulations are “substantively unconstitutional, unlawful and invalid”. In this respect they say
- The curfew and movement restrictions needlessly violate the right of South Africans to human dignity [s 10 of the Constitution]. They do so by not permitting people to enjoy aspects of the right to human dignity such as family life. For example, they allow parents to move children and selected relations to attend funerals, but they do not allow geographically separated family members to visit each other, even in times of difficulty. [A son may attend a parent’s funeral but may not visit his parent who is terminally ill]. One of the applicants tells of an ordeal of having to choose between his parents and his partner because of these restrictions. He chose a parent.
- The curfew and movement restrictions also violate the right to freedom of the person [s 12(1) of the Constitution] and the right to freedom of movement [s 21(1) of the Constitution].
- The economic restrictions regulations also infringe the right to human dignity insofar as they undermine an individual’s autonomy to make her own consumption decisions. Commanding consumers to purchase only cold prepared food from grocers but not hot food, and restricting them to the purchase of “winter clothing” when they have the freedom to choose whatever season of attire they wish, is a violation of the right to human dignity.
- The economic restrictions regulations also infringe the right to freedom of trade, occupation and profession [s 22 of the Constitution] as millions of citizens are now rendered unable to work by government’s restriction of work not falling within categories of “essential services and goods”.
The applicants say all these restrictions are unjustified. They say
- There is no evidence to show that one has a greater risk of contracting covid-19 outside one’s residence than inside. The risk of contagion arises from exposure to infected persons. But this risk is addressed by the compulsory requirement of wearing of masks and social distancing in public spaces and adhering to other recommended safety protocols.
- There is no evidence to show that one increases the risk of spreading covid-19 by buying cold food instead of hot food from a grocery store, or by buying Summer clothing (or Autumn or Spring) clothing instead of Winter clothing, or by buying educational books instead of recreational books (to the extent that there is a substantial distinction).
- There is no conceivable link between exercising at 05h59, 09h01 or 14h00, on the one hand, and the spread of covid-19 on the other. If exercise is permitted during 3 early morning hours [the regulations permit exercise only between 06h00 and 09h00], it should be permitted throughout the day.
- There is no conceivable link between the curfew and combating the virus. Covid-19 is not more transmissible at night than during the day.
The applicants say the application is self-evidently urgent because
- the constitutional infringements are extensive
- the infringements are ongoing
- the infringements are freshly perpetrated with each passing day during Level Four and look likely to continue even under Level Three
- the restrictions risk making the spread of the virus worse by congesting people in public spaces [between 0h600 and 09h00]
Still on urgency, they conclude
“it is clear that the respondents require judicial guidance on the constitutional rights that may not be infringed when responding to this covid-19 pandemic”
You may access the full application here: Esau and Others v COGTA Minister and Others – Notice of Motion, FA and Annexures 20 May 2020