In the second judgment in two days against the government’s controversial lockdown regulations, the Gauteng High Court in Pretoria ordered that no one who has tested positive for Covid-19 can be forced into quarantine or isolation at a state facility if he or she is able to successfully self-quarantine.
The order follows an agreement between AfriForum, which brought the urgent action, and Minister of Health Zweli Mkhize and Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini-Zuma.
Level 4 regulations stated that no person who tested positive for Covid-19, or was suspected of having contracted the virus, or been in contact with a carrier, could refuse admission to a health establishment or quarantine or isolation facility.
These regulations were promulgated and published on 29 April.
AfriForum, which described this regulation as draconian and irrational, argued that it was aimed at putting everyone who tested positive for Covid-19 under compulsory state quarantine.
On Tuesday, the Gauteng High Court ruled that while the declaration of the state of disaster in response to the Covid-19 pandemic was rational, most of the promulgated regulations for level 3 and 4 were not rationally connected to the objectives of slowing the rate of infection, or limiting the spread, and were invalid and unconstitutional.
The court gave the government two weeks to redraft the regulations to bring them in line with the Constitution.
Judge Norman Davis said: ‘Insofar as the “lockdown regulations” do not satisfy the “rationality test”, their encroachment on and limitation of rights guaranteed in the Bill of Rights contained in the Constitution are not justifiable in an open and democratic society based on human dignity, equality and freedom as contemplated in Section 36 of the Constitution.’
Positive cases in South Africa rose yesterday to 37 525 (with 19 682 recoveries), and 37 more deaths brought the toll to 792.
Bloomberg reported that the South African Reserve Bank (SARB) had ‘ruled out helping the government fund its runaway budget deficit by paying for its spending through loans, as the ruling party debates using the institution to fund infrastructure and development’.
It quoted one of SARB’s deputy governors, Kuben Naidoo, as saying: ‘We do not think it is prudent to finance government directly. It would increase inflation risks. It would blur the lines between an independent central bank and publicly elected office-bearers. If we were to finance government directly, there would be no pressure on government to manage their costs in any way.’
He warned that if the central bank’s role in ensuring the government remained disciplined in its spending was removed, there was a risk that the ‘entire system crumbles’.
The report noted that Finance Minister Tito Mboweni, who has forecast the budget deficit could swell to more than 10% of gross domestic product, said in a tweet on Tuesday that he stood by the central bank’s independence.
These comments follow remarks at the weekend by the head of economic transformation in the African National Congress (ANC), Enoch Godongwana, suggesting that the Reserve Bank help finance development through the creation of a R500 billion fund.
Bloomberg noted that the Reserve Bank’s critics accuse it of not doing enough to support the economy and some members in the ANC have called for its nationalization.
It said while Governor Lesetja Kganyago had in the past warned that nationalisation would be protracted and expensive and could be used as a ‘Trojan horse’ to reopen the debate about the institution’s role, he said on Tuesday the central bank had ‘walked away’ from the debate. It would instead focus on executing its mandate of maintaining price stability.
SARB’s Naido also poured cold water on the ANC’s idea of forcing pension funds and money managers to invest in government securities.
‘Prescribed assets doesn’t work,’ Naidoo said, adding that this was his personal view and not that of the central bank. ‘If you force someone to buy something, then they won’t buy it. They will find every way of not buying it.’
Meanwhile the state has asked for more time to prepare its defence against one of the challenges to the ban on the sale of cigarettes. Fin24 reported that State attorney Arista Wasserman had written to Judge President Dunstan Mlambo of Gauteng to request that the initial hearing in the challenge against the ban being brought by the Fair Trade Tobacco Association be postponed.
FITA, whose members include Carnilinx and Gold Leaf Tobacco, launched their court bid in May to allow the resumption of the sale of cigarettes and tobacco products.
The country’s largest cigarette manufacturer, British American Tobacco South Africa, last week lodged a separate legal challenge against the ban. The company, which dropped an earlier court action in favour of engaging with the government, turned back to the courts when the two separate attempts to engage with the government were spurned.
Tax Justice South Africa (TJSA) founder Yusuf Abramjee called on President Cyril Ramaphosa ‘to show true leadership and admit the error of the cigarette ban’, and lift it immediately.
He said: ‘The prohibition has failed dramatically. Smokers are still smoking and criminals in illicit trade are getting rich. Meanwhile, South Africans are being robbed of R35 million a day in taxes. As well as lost taxes, the government will only waste more money if they try to defend this unworkable ban in court.’
He added: ‘The president has said his government is prepared to acknowledge the errors it has made. This is the time to make good on that promise and announce the end of an error once and for all.’