Battle royal looms in court over lockdown

THE LOCKDOWN, the National Coronavirus Command Council (NCCC) and the subsequent regulations for the lockdown are most certainly going to precipitate litigation in the courts in relation to their legality and constitutionality.

In this legal contestation, instituted by, among others, political parties such as the DA, Freedom Front Plus and other entities, such as the Helen Suzman Foundation and the Students’ Western Cape High Court application, brought by D Esau and seven other students (Esau Application), the courts will be confronted with legal, scientific and economic grounds intended to challenge the constitutionality and validity of the NCCC and its regulations.

In relation to the council, its very name is a source of controversy, since the word “command” immediately creates the cogent impression of an “authoritarian structure”.

However, it is not merely its designation, but the very existence of the NCCC that is likely to be legally and constitutionally impugned.

The same applies to the regulations which infringe upon numerous fundamental values and rights enshrined in the Constitution and its Bill of Rights.

The rights violated in some way or another, directly or indirectly are,

inter alia, the right to movement in section 21 of the Constitution; the right to human dignity (section 10); the right to life (section 11); the right to freedom of expression (section 16); the right to religious freedom, (section 15); the right to freedom and security of person (section 12); the right to freedom of assembly, picketing and demonstration (section 17); political rights (section 19); the right to freedom of trade, occupation and profession; the right to fair labour practices (section 23) and the right of access to the courts (section 34).

In addition, the regulations must comply with the provisions of the Promotion of Administrative Justice Act, the most important of which is that they must be rational and reasonable.

Some of the regulations that are going to be cogently challenged are:

● The curfew from 7pm to 6am;

● The total ban on tobacco and cigarettes;

● Transport restrictions;

● E-commerce directions; and

● Exercise restrictions from 6am to 9am.

Even if some of these are no longer applicable under lockdown level 3, their validity is apparently going to be challenged to determine in principle whether they are constitutionally valid and rational.

Furthermore, should circumstances require it, according to the president's most recent address, some parts of the country could return to level 4.

In the litigation that is going to ensue from the lockdown and its regulations, opposing litigants are going to present medical/scientific grounds to justify their respective standpoints.

The use of the Disaster Management Act 57 of 2002 as the legislative measure to deal with the pandemic is also likely to be challenged. It could be argued that the International Health Regulations Act 28 of 1974 would have been more suited.

Ultimately the litigation, which has already been initiated, is going to proceed to the Constitutional Court, where a battle royal is likely to occur.