The Institute of Race Relations (IRR) says it will consider joining civil society in their legal fight against the manner in which the government has been enforcing the lockdown.

The institute said it would also write to the presidency to warn it about strong and valid legal arguments concerning the lockdown enforcement.

Hermann Pretorius, the IRR's deputy head of policy research, said they would consider joining as a litigant or as an amicus curiae (friend of the court) in any action by civil society that advances the cause of liberty.

“The government is facing a litigatory crisis of its own making,” he said, adding that the institute was “very encouraged by the reinvigoration of civil society in  stepping up to protect constitutionalism and the rule of law in South Africa”.

Pretorius was speaking during an online media discussion with advocate Erin-Dianne Richards, hosted by the IRR on Wednesday.

Richards said the absence of sufficient oversight of the workings and decisions of the national coronavirus command council (NCCC) was a vital constitutional concern, as it pointed to the executive abusing its powers under the Disaster Management Act.

She said the command council was running the country on behalf of 60 million people, but the concentration of power in it meant society could not properly scrutinise the rationality of its decisions.

“Had the NCCC not been formed, South Africa would still have had a lockdown, but under more rational and democratic conditions. This is where lawfulness and constitutionality matter,” said Richards.

She said it was worrying that where the abuse of power “seems absolutely rampant” and the country had been “devastated over eight weeks”, parliament had not taken action to assert its oversight role.

She stressed that her concerns related to the conduct of all political parties, not only of the government.

Richards said she hoped that lawyers would write more in the public domain on “pressing questions”.

She said she and lawyer Nazeer Cassim chose to write to the presidency in April after attempting to prompt political parties and civil society organisations to take a public stand on the constitutionality of the command council and its lockdown decision-making.

“Only when that failed and we became concerned that that debate was dead did we decide to write the letter. We wanted to reinvigorate the debate,” she said.

The IRR said it was imperative for President Cyril Ramaphosa to end his government’s abuse of power and of the constitution.

"If President Ramaphosa does not do this, the people of South Africa will do it for him,”  said Pretorius.