AfriForum has called on the minister of co-operative governance and traditional affairs to provide evidence that the curfew the government has imposed during the lockdown is rationally connected to slowing the spread of Covid-19.

The civil rights organisation on Tuesday brought an urgent application in the Pretoria high court seeking to have the national curfew of midnight to 4am declared unconstitutional and set aside.

The application comes after Cogta minister Nkosazana Dlamini-Zuma failed to respond to AfriForum’s demands to provide evidence on which the decision to institute the curfew was based.

In its heads of argument, AfriForum said it was not challenging the lockdown, the Disaster Management Act, nor the minister’s reaction to the pandemic. It is merely challenging the curfew.

“The festive season is of paramount importance in the annual financial cycle of business along the coast. The curfew places a burden on them by restricting their trading hours. This is particularly severe for bars, taverns, and nightclubs that would typically trade after 11pm,” the organisation argued.

It said while businesses usually made their money on weekends, the festive season provided a “rare” opportunity to make ends meet during the week and keep food on the tables of their staff.

“The damage to the hospitality and entertainment industries has been keenly felt and will be lamented for many years, but the permanence of the unemployment and socioeconomic consequences constitute damage that the whole of SA simply cannot afford.”

Businesses, AfriForum argued, must be given a chance at turning a profit over the holiday season. Doing away with the curfew would provide for this, the organisation said.

“Section 21(1) of the constitution provides that everyone ‘has the right to freedom of movement’. This includes the right to move freely throughout the country.

“It ‘guarantees free decision-making regarding how, when and where persons move from one place to another and how long they sojourn anywhere’.  It is clear that reg 16 infringed this right by confining everyone to their residences, albeit with exceptions and conditions.

“At the same time, by placing such a fundamental restriction on peoples’ autonomy and freedom of choice, reg 16 also infringes the right of everyone to human dignity in terms of section 10 of the constitution,” AfriForum argued.

The curfew, the organisation contended, constitutes an infringement on the rights to freedom of movement, dignity and trade.

“While the respondent describes the infringement on those rights as temporary, the curfew has been present from the start of the pandemic and has lasted 20 months.

“The notion that South Africans would be imprisoned for six months for daring to leave their homes after midnight would have been unthinkable a mere two years ago.”

AfriForum said the imposition of the curfew had brought the hospitality industry to its knees, and keeping it in place during the festive season would be “egregious because this is the one time of year when these businesses have a chance to repair the damage that has been done and ensure that their staff have jobs to return to next year”.

According to the organisation, Dlamini-Zuma has not provided any evidence that curfews are strictly necessary to ensure the healthcare system does not collapse.

“The fact that curfews have been part of a toolbox of measures does not mean that the particular tool of curfews is rationally connected to the goal of saving the healthcare system or that the harm they cause can be justified.

“The respondent’s failure to provide evidence that curfews are effective means that it has failed to meet its burden to justify the rights that have been infringed.”

Imposing the curfew is an unlawful breach of a series of constitutional rights, and it is imperative that it be reviewed and set aside before the start of the festive season, AfriForum argued.

It said it had brought the application in the public interest and therefore should not bear the costs of bringing it.

“If the applicant is unsuccessful in this matter, costs should not be awarded against it because it has acted in the public interest in litigation against the state. If it is successful, it should be awarded its costs.”

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