Fighting for the Re-Opening of Sectors Through Litigation During the Lockdown: Is It Worth It?

Following a complete lockdown which extended beyond a month, the President of the Republic of South Africa announced the plans to resume economic activity. The necessary amendments to the original Regulations were effected, consequently. The phased-in plan to resume activity was explicated and implemented as of the 1st of May 2020. Although some sectors have been re-opened under Alert Level 4, many others are still closed or operating remotely, where possible. Sectors, naturally, do not operate in an island and, are inextricably interdependent. As a result of this interdependence, sectors that have been given the greenlight to operate are pushing the government to allow operations to resume in the sectors on which they depend i.e. they are arguing that they are essential.

These are genuine concerns by the Level 4 sectors as their operations are frustrated by the continued closure of other sectors. As a consequence, various sectors have been writing to the Department of Co-Operative Governance & Traditional Affairs seeking exemption of certain sectors from the restrictions. Others have been threatening with litigation whilst others have proceeded to institute proceedings. To the greatest degree, with appreciation of the gravity of the pandemic and the necessity of the restrictions, our courts have been dismissing applications left, right and center. The government has also stood its ground in imposing restrictions and not giving in because of the litigation threats. This then bags a question whether litigating over resumption of operations by certain sectors is realistically worth it.

Litigating is a costly process, be it a normal or urgent court, one or more parties is bound to “cough up” few thousands of Rands. It is therefore always important to weigh up options appropriately before commencing with such processes. With that said, it is everyone’s constitutional right (Section 34 of the Constitution of the Republic of South Africa, 1996) to have their legal disputes resolved/heard by a court. Since the lockdown officially commenced, there have been various cases brought forward by interests’ groups; companies, etc. fighting for the exemptions.

Hola Bon Renaissance Foundation brought an application to the Constitutional Court (very early into the lockdown) challenging the constitutionality of the lockdown itself. Having due regard to the potential damage that can be inflicted by the virus, the court dismissed the application and allowed the lockdown to stand. There was then a matter of Mohamed & Others v the President of the Republic of South Africa & Others wherein the Muslim community wanted the term “gathering” to be declared unconstitutional and to permit them to open the mosque for congregational prayer.

The High Court of South Africa, Gauteng Division, Pretoria, dismissed the application, stating that the restrictions imposed are necessary and constitutional having regard to the greater threat of the inconspicuous enemy – COVID-19. Further, the Association for the Protection of Road Accident Victims fought for the Road Accident Fund to be allowed to resume its operations, the government and the court, once more, were not convinced of the pressing need to allow this, in view of the continuing COVID-19. Furthermore, the Employers’ Organisation for Hairdressing, Cosmetology and Beauty is also threatening legal action against the government and arguing that the services rendered by hairdressers and stylists are essential. It will be interesting to see how this case pans out if and when it does reach court. The abovementioned cases are but some of the cases which have been turned down by the government and, the courts have preferred to stand by the government – obviously, with valid reasons.

The manner in which the courts have treated these cases paints a clear picture as to the gravity of the pandemic. It further shows that, just like the government, the courts are willing to promote inroads to other constitutional rights so long as lives are preserved. The decisions may be applauded because of the fact that the numbers of infections are increasing, and fatalities are also on the rise. Further, our courts are cognizant of the precedents that they are creating. If, for example, the ‘Tobacco’ case had gone before the court and it was indeed successful despite the scientific evidence suggesting health risks and implications of tobacco particularly against the coronavirus, it would have been a mammoth task for the government/courts to dismiss calls for the resumption of sale of alcohol. Although any further shrinking of the economy will prove to be catastrophic for our country, allowing many other sectors to resume operations may result in the situation worsening. The operating sectors therefore need to work with what they have in the meantime – to try and figure out innovative ways of production.

The unfortunate nature of this inextricable interdependence of sectors is that, if the government allow further sectors to re-open, those re-opened sectors depend on other sectors as well and therefore there will be requests for exemption of other further sectors. This will certainly defeat and undermine the whole purpose of the lockdown. In addition, this will add a much unneeded pressure on our already frail health system.

Any person planning to litigate on matters of such nature will have to adequately weigh up the options and have regard to the manner in which our courts have been approaching the “exemption cases”. By all means, everyone has a right to be heard out in a court of law and, where the chances of success are good, people must proceed to litigate. It then becomes pertinent to seek legal advice whether to proceed to litigate. In keeping with the aforesaid, the worthiness of fighting for the re-opening of sectors through litigation will be informed by various factors and proper assessment of all the factors need to be investigated and thoroughly scrutinized, failing which massive costs orders may be made against the applicants.

Mthokozisi Maphumulo
Mtho Maphumulo
Associate | Litigation Attorney