By Fadzai Ndangana
The High Court has dealt a heavy blow to the informal sector who have been told to remain closed despite the bigger section of the economy now operating.
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.
The applicants felt the ban on informal sector except for vegetable markets 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 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. 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,” she added.