Government winning court cases but losing public buy-in, say analysts

Nkosazana Dlamini-Zuma.
Nkosazana Dlamini-Zuma.
Gallo Images
  • Government has won a string of cases challenging different aspects of the Covid-19 lockdown and the Disaster Management Act.
  • Law experts say this is because the courts want to enforce separation of powers. 
  • Thuli Madonsela said despite the legal wins for government, they are losing public support for its effort to fight the coronavirus. 

Government may be winning court cases seeking to challenge their response to the Covid-19 pandemic, but they are losing public buy-in.

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This is according to Professor Thuli Madonsela who said government was creating a situation where the people were fighting to evade the government instead of fighting to combat the coronavirus. 

"They may be winning cases in courts of law but not in the court of public opinion," she said.

Madonsela further noted that even though government was winning cases there was a growing lawlessness.

"Virus is getting the better of us because it has become the people versus the government," she said.

READ | FF Plus' court challenge of the Disaster Management Act dismissed 

Since Judge Norman Davis ruled that regulations under lockdown Level 4 and 3 were irrational, government has had legal challenges against different parts of the lockdown go their way.

Madonsela said in some cases, the courts want to enforce separation of powers, relying on judicial deference.

This means the courts view is that the executive has more expertise to deal with the matter.

Figures

"It is trying to leave the executive to do what it does because it has the statistics and figures before them. The court does not have it," she said.

On Monday, the state won another case.

The High Court in Pretoria dismissed the FF Plus Court bid challenging the constitutionality of the Disaster Management Act.

In dismissing the application, Judge Dunstan Mlambo maintained that the Act "does not permit a deviation from the normal constitutional order" and that the courts still have power to review any decision made by the executive.

He said the Act allows the executive to issue directions or regulations and while these may limit fundamental rights it is still permitted because the limitation is still "subject to being tested against s36 of the Constitution".

READ | Covid-19 UIF fraud: 5 accused granted bail

This was after the Helen Suzman Foundation and the DA's separate applications for direct access challenging the Disaster Management Act in the constitutional court was dismissed

The Constitutional Court also dismissed the case by One SA Movement leader Mmusi Maimane in relation to the reopening of schools. When he took the matter to the High Court, it ruled against him.

Constitutional law expert Pierre de Vos said the Constitutional Court almost never grants direct access.

"They almost always say they are not the court of first instance," he said.

Both De Vos and Madonsela said a lot of the cases challenging the lockdown and its regulations have been poorly argued.

"If you argue the rationality test, it is easy for government to pass that test. Just because a regulation is dumb doesn't mean it is unlawful or unconstitutional," he said.

Madonsela said government's bullish behaviour pits the people against it.

Ordinary man

Gideon Andries Brits is a 45-year-old man from Lyttleton, Pretoria. He describes himself as a concerned citizen who worries about the legality of the declaration of a national state of disaster as a result of the Covid-19 pandemic.

He said he was heeding the call of Chief Justice Mogoeng Mogoeng to bring these concerns to the attention of the court.

Brits began a fundraising initiative to fund the legal challenge.

His fundraising page appears to have fundraised R43 000 of his R100 000 goal.

He briefed a lawyer and went to court  asking it to direct government to release all the reasons behind every regulations and directions issued by the government under the Disaster Management Act. 

But the High Court struck the case off the roll and awarded a cost order against him.

Brits said he was "utterly disappointed", more especially that the judge did not consider their replying affidavit.

His lawyer Hans Jurie Moolman said they were disappointed by the judgment and have not decided on the way forward.

Other big cases government won in recent days was the challenge by the Fair Trade Independent Tobacco Association against the tobacco ban.

In June, the Western Cape High Court dismissed an application to have the lockdown regulations declared invalid, and the National Coronavirus Command Council (NCCC) declared inconsistent with the Constitution and the Disaster Management Act. 

Madonsela said it was a pity that government may only lose cases long after the devastation caused by its decisions are felt.

She said those who take government to court ought to be accurate and more concise.

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