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- The government has made the decision to close several beaches due to the second wave of Covid-19 infections.
- Fears that the regulations will irrevocably damage the local economies of coastal cities have led to legal challenges.
- The government has argued that beach closure regulations are rational and justified.
The government has maintained that its decision to close certain beaches in critical areas as a second wave of Covid-19 infections continues to grow is temporary, rational, and justifiable, and therefore complies with the law even if it limits other rights.
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As South Africans kicked off the holiday season, President Cyril Ramaphosa announced that certain beaches and public parks will be closed during the holiday season, citing a dramatic increase in confirmed Covid-19 cases.
All beaches in the Eastern Cape and along the Garden Route were closed because they are considered hot spots, while in KwaZulu-Natal the beaches will be closed on what are “traditionally the busiest days of the season.”
These new regulations, enacted under the Disaster Management Act (DMA), prompted AfriForum and the Great Brak River Business Forum to approach the courts in an attempt to have beach-related regulations declared illegal and unconstitutional.
The matter is expected to be heard at Gauteng High Court in Pretoria on Tuesday.
READ | Beach closures: Ramaphosa, Dlamini-Zuma face a fight over Garden Route beach closures
It was argued that the regulations will have a devastating impact on the economy, will limit economic and tourist activity and, therefore, will impact on the freedom of commerce, as enshrined in the Constitution.
Regulations also affect freedom of movement, it was argued in court documents.
Furthermore, the government did not provide substantial reasons for the decision to close the beaches, nor did it provide the evidence on which it was based.
The Minister of Cooperative Governance and Traditional Affairs, Nkosazana Dlamini-Zuma, responded in an affidavit, arguing that the beach closures are temporary and justified in the context of the second wave of Covid-19 infections that is exacerbated by the fact that it is happening during the festive season.
Dlamini-Zuma argued that rights related to dignity and freedom of expression were not affected by the challenged regulations and, since the beach closures and limitations are temporary, they do not infringe on freedom of movement.
Regarding the right to freedom of trade, Dlamini-Zuma said the regulations do not infringe the right to choose a particular profession.
The government has also dismissed the argument that it had not consulted those affected before announcing the regulation.
READ | Beach closures: government lashed out at court documents over ‘draconian’ regulations for Garden Route
“The Disaster Management Law does not provide for a public participation process before making the disaster management regulations. I am only obliged to consult the required cabinet ministers, which I did,” Dlamini-Zuma said.
Regarding the scientific participation in the decision to close the beaches, Dlamini-Zuma said that the Medical Advisory Council (MAC) was contacted to obtain their input and different options were identified.
He added that there was no categorical right or wrong view of these options.
According to the government, these were the options identified by the MAC:
- Close all beaches during the holiday period.
- Close the beaches on certain dates when large crowds are anticipated.
- Allow municipalities to decide and manage beach closures if necessary.
The government faces several other challenges related to the latest regulations, including one from the official opposition party, the Democratic Alliance.
Since the DMA came into effect earlier this year, there have been other legal challenges over the rationale for some of the regulations, including the ban on tobacco products, which were found not to be rationally connected to government objectives in the handling of the pandemic and therefore was put aside.
In many of these challenges, including beach closures, the government has maintained that it is constitutionally obligated to prevent Covid-19 from killing hundreds of thousands of people in South Africa and that it must uphold the right to life.
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