It’s clear that the hawks at the government’s national coronavirus command council were never going to get their wish for SA to be thrust back into an alcohol-and nicotine-free level 5 lockdown, given the bruising court judgment last week against co-operative governance minister Nkosazana Dlamini Zuma’s five-month tobacco ban.
In case you’ve already blocked out all memory of the dark days of SA’s most irrational Covid-related restrictions, the government — or its representative, Dlamini Zuma, heroine of such dramas as Virodene and Sarafina 2 — barred sales of tobacco, given its propensity to spread Covid, maim lungs and gobble up precious hospital space.
Last week, the Western Cape High Court ruled that regulation 45, which she used to implement the ban, "does not withstand constitutional scrutiny". In the 157-page ruling, the three judges said the government could not show that the tobacco prohibition "reduced or acted to reduce the strain on the health-care system". The science that Dlamini Zuma relied on to argue this point was "far from conclusive", the court ruled.
This wasn’t a major surprise. For example, Dlamini Zuma’s legal team presented as evidence a survey by the M4Jam online micro-jobbing platform that found 51% of respondents had quit smoking during the lockdown.
But, the court said, "no scientific methodology was employed in gathering or analysing the data", so "no value is attached" to M4Jam’s survey.
There was a revealing moment when the judges asked Dlamini Zuma’s lawyers whether there wasn’t another way to achieve the goal of stopping people smoking without infringing on their constitutional rights. Her lawyers said maybe — but that’s the government’s business, and the court should stay out of it.
"We do not agree," said the judges. "Whether or not there is an alternative less intrusive way [to do this] is central in determining both the proportionality and legality of the steps taken."
This is the nub of the issue: the government feels entitled to do what it wants, no matter how irrational. Luckily, during Covid-19, our courts have intervened to call Dlamini Zuma and her colleagues to heel — repeatedly.
SA must now pick up the pieces following the mess caused by her tobacco frolic: close to R5bn in lost excise duties, and the explosion of an illicit tobacco market.
Now we’re in the grip of a second wave. You can imagine many of the minister’s colleagues would have been itching to press the button on another lockdown.
In that sense, SA got off relatively lightly — an extended curfew, tighter enforcement of level 1 restrictions, and a stern message to partygoers to behave themselves.
The government has also taken a refreshingly reasonable approach to the liquor industry, notwithstanding the role of alcohol in various superspreader events. Retailers are still open for business between Monday and Thursday and registered wine farms will be allowed to continue offering tastings and sales.
President Cyril Ramaphosa argued that an "exception" was made "due to the vital contribution of these establishments to the tourism sector". It is a belated but necessary acknowledgment of the part the sector plays in SA’s economy.
Yet such a concession was not forthcoming for the countless tourism-dependent businesses in the Eastern Cape and Garden Route that are desperate to make one last go of a dreadful year.
The decision to close all beaches in the Eastern Cape, at the request of premier Oscar Mabuyane’s failing administration, is another example of a blunt and inconsistent approach.
So, beaches in KwaZulu-Natal will close on certain days, Cape Town beaches will stay open, but those in the Eastern Cape are shut until January 3. More than anything, it shows Mabuyane’s failure.
Ramaphosa was right that South Africans need to pull together and act responsibly. But shouldn’t the government set the example?
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