by Jean-Jacques Cornish
South Africa’s courts have been a constant in the country’s hazardous path through wicked colonization, cruel apartheid and the vagaries of democracy.
So it is both inevitable and desirable that they should be called upon to rule on events in the biggest crisis the country has faced since the Second World War 75 years ago.
Government has assumed unprecedented powers to deal with the COVID 19 pandemic.
These have had an immediate impact on the rights of South Africans guaranteed in their Constitution that is justifiably the envy of most of the world.
They will also have an unfathomable long term impact on the socio-economic life of South Africa that is euphemistically referred to as challenging.
The first legal foray is being launched by British American Tobacco South Africa and the Fair Trade Independent Tobacco Association.
They argue that the National Coronavirus Command Council has taken measures that fly in the face of individuals right to choose and are unnecessarily injurious to the exchequer. They further argue that the the NCCC is suffocating the country’s socio economic prospects.
Government counters that the prevention of tobacco and alcohol sales during the lockdown are justified on purely health grounds.
They say these steps have been emulated by Mexico Hong Kong and Greenland.
The second matter to come before the courts is challenging the constitutional mandate and the power of NCCC.
President Cyril Ramaphosa is being asked to explain the source of the power he has wielded delegating executive functions to a body that includes some but not all of his Cabinet.
To this, government will cite Constitutional Court President Arthur Chaskalson 1995 ruling outlawing capital punishment.
Judge Chaskalson said that the rights to life and dignity are the most important of them all. In make any ruling on human rights, these have to be placed above all else.
Ramaphosa argues that regulations put in place to combat COVID 19 are founded on government’s commitment to life and dignity.
In extreme circumstances, he holds, it is necessary to put a temporary restriction on other rights like the freedom of choice, movement and association.
Education is at the root of the third legal challenge.
The Tebelia Institute for Leadership, Education, Governance and Training
and the Africa Institute on Human Rights and Constitutional Litigation are challenging the opening of schools.
They say government cannot keep parents at home to prevent the spread of COVID 19 while sending innocent children to school to save the academic year.
Basic Education Minister Angie Motshekga says, in effect, it is still up in the air.
She acknowledges that her department has indicated children could be returning to school as early as this week.
However, she says it is only the “education sector” not necessarily the schools themselves that have opened up today.
As Tom Wolfe said in Bonfire of the Vanities, we are truly now in the web of the law.