But his argument ran into several difficulties, including confusion about which minister needed to be sited as a respondent in the matter. The health minister’s defence counsel Adiel Nacerodien argued that he should rather have cited minister of cooperative governance and traditional affairs Nkosazana Dlamini-Zuma, as she was responsible for creating the regulations.
Viljoen argued that according to the revised regulations published in April, health minister Zweli Mkhize had the power to make recommendations to Nkosazana-Zuma. But judge Lee Bozalek pointed out that Nkosazana-Zuma did not have to act on the recommendations if she did not wish to.
Viljoen also argued that the cost of the ban - on what he claimed was a R250bn per annum industry - was greater than the potential cost of risking Covid-19 infections. While 1.5% of the population could die of Covid-19, he said deaths related to poverty resulting from the ban would be much higher.
Bozalek said if he ordered the opening of salons based on current Covid-19 infections and the infection rate mushroomed in three weeks’ time, he would have no way to reverse his decision.
“The effect of my interdict will be to declare regulations for hairstylists null and void,” he said, adding that what Viljoen was really asking for fell in the realm of a final relief, which is a much more stringent process.
“You’re asking me to extend an order into the future. In three weeks’ time, when infections have mushroomed, I can’t reverse my order,” said Bozalek.