The applicants argue that the decision to shut down Garden Route beaches between December 16 and January 3 was draconian and inconsiderate, and was against the interest of thousands of people who are employed in various sectors in the area.
THE GREAT Brak River Business Forum, AfriForum and a guest house owner have filed an urgent court application in the North Gauteng High Court in a bid for Garden Route beaches to reopen during the festive season.
In the court papers, Great Brak River Business Forum chairperson Wilhelm De Wet, guest house owner Louis Cook and AfriForum argue that the decision to shut down Garden Route beaches between December 16 and January 3 was draconian and inconsiderate, and was against the interest of thousands of people who are employed in various sectors in the area.
The respondents on the matter are Cooperative Governance Minister Nkosazana Dlamini Zuma, Health Minister Zweli Mkhize and the Western Cape Government.
The applicants seek to have similar restrictions as imposed on KZN beaches, where the beaches will only be closed on public holidays –December 16, 25, 31 and on January 1 to 3.
They argue in court papers that the decision has a dire impact on the Garden Route region, saying that it is the seventh most popular tourism destination in South Africa and the businesses in the area rely on the festive season to provide a financial boon that is required to sustain their businesses.
“The Cogta minister did not invite representations or submissions from interested parties, including key role-players within the tourism sector in the affected and targeted areas, particularly the Garden Route District, regarding the intention to enact these stringent and harmful impositions.
“It is respectfully submitted that the promulgated Regulations 69(12) (a) – (d) imposed on December 15, 2020, constitute procedurally unfair administrative action because the regulations materially and adversely affect rights of the applicants and, secondly, the Cogta minister failed to follow a notice and comment procedure before promulgating the Regulations. 87 88. 8’9.
“The regulations exist without discernible or actual distinction, and they bear and/or exhibit zero rational justification for the restrictions that they seek to foist upon the applicants, their members and South Africans generally,” said De Wet in the filing affidavit.
The applicants seek to have the regulations in question declared unconstitutional, unlawful and invalid.
The Garden Route District Municipality and the Sarah Baartman District Municipality were declared as hot spots on Monday during President Cyril Ramaphosa’s address to the nation. The two municipalities joined the Nelson Mandela Bay Metro, which was the first district in the country to be declared a Covid hot spot.
But in the court papers, the applicants slam Dlamini Zuma for failing to provide substantiated reasons and evidence to support the decision.
“There exists no clarity or reason which has either been provided or discernible to explain the decision of the Cogta minister to subject beaches in general, and the specific beaches identified in the regulations, in particular, to additional and more-stringent scrutiny.
“Given the unfortunate recent history of conduct by the Cogta minister, underscored by numerous adverse findings and judgments impugning her purported decision-making process, it has become pertinent and essential that the applicants prosecute this application as a matter of urgency.
“The applicants seek, as a result, that the respondents pay the applicants’ costs in the application, including the costs of counsel, jointly and severally, the one paying the other to be absolved,” the applicants said.
De Wet also argues that the closure of the beaches has a direct impact on the sustainability on travel and accommodation businesses in the Garden Route area.
“The (travel and accommodation) industry is inextricably linked to beachgoers, and to deny the main pillar of the tourism industry in the Garden Route is to stifle or indeed thoroughly throttle the tourism, travel and accommodation industry and economy as a whole.
“Furthermore, another feature of the tourism industry in the Garden Route District is the seasonality of such socio-economic activity.
“This creates a situation in which the industry is almost entirely reliant and dependent upon the sharp increase in business and income during the end of year holiday period.
“By way of example, we submit that the second applicant’s guest house receives approximately 25% of its annual income in the month of December alone,” he said.
He also said the decision to impose the beach ban was a limitation of rights, was draconian and inconsiderate and did not consider less restrictive means that said should have been considered.
“The failure by Cogta minister and the government to have done so further tarnishes the legality and lawfulness of the decision and renders the decision arbitrary and irrational.
“ln respectful submission, the limitations of rights sought by the regulations in issue, cannot be justified in requirements of section 36 of the Constitution.
“Furthermore, the implementation of the restrictive measures in the regulations by the Cogta minister and other respondents cannot credibly be argued to be rationally connected to the purpose for which such measures are implemented and rights are limited.
“The irrationality of the conduct is readily apparent if one compares the rights which have unlawfully been limited against the dire economic consequences which will result, and will further (as it already does) contribute to socio-economic hardships, public health risks and, regrettably the desecration of the rights in terms of, inter a/ra, sections 10, 16 and 22 of the Constitution,” he said.
