The informal sector remains closed under lockdown after the High Court found that the Government acted reasonably and lawfully by keeping it closed while allowing the formal sector to reopen under strict conditions.
The ruling follows an urgent application by the Zimbabwe Chamber for Informal Workers Association (ZCIWA), Passenger Association of Zimbabwe (PAZ) and Chitungwiza resident Mr Constantine Chaza seeking to overturn the lockdown ban on the informal sector, except for vegetable markets, on the grounds that the difference in treatment for the formal and informal sectors was discriminatory and that the associated ban on independent kombis created an unlawful Zupco monopoly.
The associations argued that lockdown regulations violated their members’ constitutional rights to freedom of profession, trade and occupation.
The Government had argued that the lifting of the lockdown was being done in phases and that there was no intention to permanently close the informal sector.
But Justice Mary Dube — in her ruling yesterday — said the lockdown regulations were rational, reasonable and justifiable in the circumstances.
“No just cause has been shown for the relief sought. The applicants have not shown an entitlement to the interim order sought.”
The judge also noted that the Constitution does allow some fundamental rights to be limited in emergencies, including public health emergencies.
Anyone challenging an administrative decision by the Government or any other authority has to show either that the Government does not have the legal power to make that decision, or that the decision was seriously unreasonable or made in bad faith.
The law assumes that all administrative decisions are made constitutionally, legally and reasonably unless those complaining can show otherwise. The burden of proof is on those complaining.
The two associations attacked the lockdown regulations on three grounds: that the regulations breached constitutional rights, were legally defective, and thus had not been issued under legal authority, and that they were applied unreasonably.
Justice Dube dealt with all issues.
On the issue of breaches of the constitutional declaration of rights, she went into depth on accepted international law and standard international tests that needed to be applied if any right was limited.
She agreed that some rights had been limited, particularly the rights of freedom of movement, association and of doing business.
But she found that the limitations were provided for by law and were permitted by the Constitution to deal with a formidable epidemic disease.
“There is a health disaster at hand. The limitations are necessary and serve to respond to a pressing public health need and hence pursue a legitimate end.”
She also found that quarantine restrictions during a lockdown, such as restricting people to their homes, were reasonable.
Dealing with arguments that the informal sector was treated “unequally, unfairly and in a discriminatory fashion”, she agreed that the Government had to justify that discrimination. But she also found that opening the informal sector at this stage could fuel the spread of the disease since “it will be difficult to monitor the lockdown rules in the informal sector as opposed to the formal sector”.
She noted that there was no discrimination against kombi and bus operators as they could operate under the umbrella of Zupco and took judicial notice that some had taken that route. But even if she was wrong that there was no discrimination in public transport, the restrictions imposed still pursued a legitimate purpose of curbing a pandemic.
“There is need to balance the applicants’ entitlement and responsibility of Government in terms of the Public Health Act and the constitutional liberties provided for in the Constitution,” she said.
She found the measures taken by the Government rational to achieve the desired purpose, thus to protect the rights of every citizen to life, dignity and a safe environment.
The court also noted the country might be entering a second wave of the pandemic as the infections are on the increase hence Government has an obligation to plan for the epidemic and should be afforded the opportunity to do so without interference.
“It is not the business of the court to interfere with government policy,” she said. “The Government has the right to govern. It must be afforded an opportunity to govern and plan for the epidemic and put in place adequate measures for the containment of the disease.”
Justice Dube criticised the informal sector association for not taking the epidemic seriously and slammed the sector for trying to downplay the severity of the pandemic.
Earlier in her judgment she had dealt with a second legal challenge, that the original public health regulations at the start of the Covid-19 epidemic enjoined the Minister of Health and Child Care to consult the President in certain cases before issuing directives. The associations had argued that this was delegating his powers given by Parliament under the Public Health Act.
The judge found that consultation was not sub-delegating, that is handing over the statutory powers of the Minister of Health in a health emergency. Rather it was just consultation, which is reasonable in any country, and the legal power to make the regulations remained with the Health Minister and were made by the minister with no suggestion that the minister had handed those powers over to the President.
She reminded the applicants that if this disease was going to be defeated, that would only happen with the cooperation of everyone concerned, and that must happen despite all odds.
“People must be united in order to fight this scourge,” she said.
“We must all be part of the solution. The holy trinity of tackling a crisis is unity, faith and sacrifice. We must stay united as humans above all else, we must have faith in ourselves and in each other and we must sacrifice our self-obsession.”
At the beginning the hearing the question of whether the application was urgent had to be addressed. The Government legal team argued that the applicants had waited a month since the original lockdown regulations to make their application and so had lost their right for it to be treated urgently.
Justice Dube conceded that there was doubt on whether the rules for an urgent matter had been met but decided that as a matter of public policy and fairness the application should be allowed an urgent hearing.