Should current regulations, including the alcohol ban – under Advanced Level Three lockdown – continue to severely impact the tourism and hospitality sector, there could be legal ramifications.
This is according to legal expert and founder of Makhubela Attorneys, Lucky Makhubela. “The COVID-19 regulations have interfered with the right of people to earn a living, which is in contrast to the guarantee by South Africa’s Constitution.”
According to him, the regulations can be challenged on the basis that they infringe on the right to earn a living and trade.
“However, those businesses/industry associations who choose to take this route must be able to demonstrate to the court how these regulations have unfairly discriminated against them and how they have interfered with these rights. No right is unlimited; one must show that the regulations amount to an unjust limitation of their rights as enshrined in the Constitution,” he explained.
Makhubela added that even though the rationale by which the government had justified their decision to impose travel restrictions and ban alcohol, the core of the issue was the impact that these regulations have had on the livelihoods of those most affected.
“There is a probability that if, and when, legal action is taken against the state, the courts will rule in favour of the complainants,” he said, pointing out that in order to ensure that the long-term effects of the current lockdown were neutralised, the government would have to strike a balance between saving lives and sustaining livelihoods.
A number of tourism industry leaders have sought legal opinion and many are exploring their options.
CEO of More Family Collection, Robert More, is leading the charge with legal action on behalf of game lodges across the industry – a movement that has also gained traction through social media. Requests have been made in the game lodge sub-sector for donations to pay the legal fees, as the process is costly, according to More.
At some stage the Tourism Business Council of South Africa (TBCSA) was also exploring legal action but its CEO, Tshifhiwa Tshivhengwa, has noted that the organisation was sensitive to the growing number of COVID-19 cases and how hard it had become for government to give concessions to the industry.
“We are still lobbying a great deal, especially for leisure travel to open,” he said. “But we must acknowledge some of our small wins.” These include a recent announcement that overnight leisure travel would be allowed on an intra-provincial basis.
Tshivhengwa added: “We understand that many things in the regulations don’t make sense but we must solve this in a calculated way and only go to court knowing that we can win. We don’t want to weaken ourselves further.”