The shock closures of beaches in the Eastern and Western Cape are unconstitutional. The Gauteng High Court declared them to be so in June 2020, and the Minister of Cooperative Governance and Traditional Affairs has acted in contempt of court.
The Garden Route and the Sarah Baartman District of the Eastern Cape were shocked to learn last week that as part of new measures to contain the resurgence of Covid-19, the government not only imposed rational limitations on public and private gatherings, but also closed parks and beaches.
Very few, if any, beaches in the region are capable of attracting such large crowds that social distancing would be impossible. If indoor venues such as bars and taverns can open subject to a 1.5m social distancing rule, then surely outdoor spaces should be subject to the same condition.
Last week, I pointed out how absurd this decision is. Coronavirus is hardly ever transmitted outdoors. Parks and beaches are the safest places you can be. Closing outdoor spaces will simply push people to indoor venues like malls, taverns, bars and restaurants, where the virus is far more likely to spread. These rules make matters worse, not better.
Beaches are the lifeblood of the tourism industry in the coastal towns of the two districts, and tourism is the mainstay of their local economies. Closing beaches has led to a great many holiday cancellations, which deprives the surviving tourism companies not only of their busiest time of the year, but also their only hope to claw back some of the catastrophic losses from earlier lockdowns.
The court already ruled
The Democratic Alliance has approached the Western Cape High Court to have the regulations overturned. Other groups, including the Great Brak Business Forum, have likewise approached the courts for relief.
In a post on his blog, constitutional lawyer Pierre de Vos argues that bad policy is not necessarily unconstitutional. Without having seen the actual court papers in the cases, he spitballs various potential arguments and shoots them down.
However, what everyone seems to forget is that there is already a High Court ruling that declared park and beach closures to be unconstitutional.
In De Beer and Others v Minister of Cooperative Governance and Traditional Affairs, handed down in the Gauteng Division of the High Court on 2 June 2020, Judge N Davis denounced the ‘sheer irrationality’ of a variety of what were then Level 3 lockdown regulations. In particular, he had this to say about parks and beaches:
‘[It] can hardly be argued that it is rational to allow scores of people to run on the promenade but were one to step a foot on the beach, it will lead to rampant infection. And what about the poor gogo who had to look after four youngsters in a single room shack during the whole lockdown period? She may still not take them to the park, even if they all wear masks and avoid other people altogether.’
He pointedly cited an opinion by Judge J Fabricius, in Khosa and Others v Minister of Defence and Military Veterans and of Police and Others,
‘The virus may well be contained – but not defeated until a vaccine is found – but what is the point if the result of harsh enforcement measures is a famine, an economic wasteland and the total loss of freedom, the right to dignity and the security of the person and, overall, the maintenance of the rule of law?’
Unconstitutional and invalid
The ruling in favour of the applicant was widely criticised as weak and likely to be overturned on appeal. Judge Davis declared the lockdown regulations under the Disaster Management Act to be unconstitutional and invalid, and instructed the minister, who chairs the National Coronavirus Command Council, to review, amend and republish most of the regulations, including those pertaining to parks and beaches.
The Minister promptly sought and was granted leave to appeal. However, according to De Beer, that appeal was never filed.
Therefore, Judge Davis’s ruling, whatever its merits, stands. And that means by once again closing parks and beaches, the Minister has acted in contempt of court.
There need be no further argument about why these regulations are unconstitutional, or court cases to have them declared invalid. They are already unconstitutional and invalid, and have been since June.
Local municipalities should defy the unlawful order of the National Coronavirus Command Council and reopen their parks and beaches, before more harm is done to the coastal tourism economy.
Now, let’s hit the beach.
[Picture: South African Tourism from South Africa, https://commons.wikimedia.org/w/index.php?curid=67603258]
The views of the writer are not necessarily the views of the Daily Friend or the IRR
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