Law and Security
The state, the public and covid The state of the country is not easy to monitor nor encapsulate quite where South Africa stands in relation to Covid-19, lockdown regulations, economic resilience and the impact of multiple layers of opening up of previously closed segments has still to be tested. By Peter Bagshawe
W
hen lockdown started the State implemented the Intergovernmental Committee on Disaster Management, chaired by Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini Zuma, which led to the establishment of the National Disaster Management Advisory Forum and a National Disaster Management Framework. These all are geared around the management of what is essentially a health crisis of immense magnitude which is the responsibility of Minister of Health Zweli Mkhize in conjunction with experts and committees that he has in turn established in cooperation with supporting government departments. The issuing of regulations is a departure from the normal democratic process 26
in South Africa and this has led to a number of court cases aimed at testing the validity of regulations. High profile matters that have been taken to court include the application by the Fair Trade Tobacco Association to reverse the ban on the sale of tobacco products, British American Tobacco South Africa’s challenge on the ban of the sale of cigarettes and tobacco products and De Beer Minister of Cooperative Governance and Traditional Affairs. In this De Beer, in his capacity as president of the Liberty Fighters Network challenge to the constitutionality of lockdown regulations. The last mentioned was directed at the Disaster Management Act established by Nkosazana Dlamini Zuma and the National Covid-19 Command Council. The Fair Trade
Security Focus africa May 2020
Tobacco Association matter has been decided and the North Gauteng High Court has handed down judgment. The court held in a ruling signed by Judge President Dunstan Mlambo that the decision not to permit the sale of cigarettes was not irrational (as alleged by the Fair Trade Tobacco Association), and that the test for the decision to prohibit the sale of tobacco products was that it was procedurally rational and not that it was fair. By implication and unless overturned on appeal (which the Fair Trade Tobacco Association has indicated it will proceed with) this now provides precedent for the position that provided actions taken by the Disaster Management structures are procedurally rational they will not be overturned by courts of equivalent or lower jurisdiction. The British
American Tobacco South Africa matter was scheduled to be heard on 30 June 2020 but, following lodging of papers, is now scheduled to be heard on 5 and 6 August 2020. This delay has led to some dispute between the respective legal representatives and a measure of legalistic finger pointing. Of equal interest was the decision in the Liberty Fighters Network hearing before the North Gauteng High Court challenging the constitutionality of lockdown regulations found in the Disaster Management Act. This centred on the lockdown regulations failing to consider people’s rights when promulgating the regulations. In a decision which has attracted academic debate as to judicial overreach Judge Norman Davis held the declaration of a state disaster in reaction to the Covid-19
securityfocusafrica.com
