The DA and co-operative governance & traditional affairs minister Nkosazana Dlamini-Zuma are set to butt heads in the high court in Cape Town on Friday over hair and beauty.
The opposition party has hauled Dlamini-Zuma before court over what it has termed the “irrational and unconstitutional ban on personal care services”.
“This is an important case for the DA but also for the hundreds of thousands of South Africans who have had their livelihoods shattered by the inaction of government to set in place health regulations that will allow hairdressers, beauticians and tattoo artists to operate in a safe environment for them and their customers,” said DA MP and spokesperson on trade and industry Dean Macpherson.
“The DA looks forward to this opportunity to hopefully get these hard-working men and women in the personal care industry back to work so that they too can keep a roof over their heads and put food on their tables.”
In his founding affidavit to court, Macpherson described Disaster Management Act regulations promulgated by Dlamini-Zuma on May 28 in relation to personal care services as unconstitutional. Under the amended regulations, the personal care services industry is not allowed to operate under lockdown level 3.
According to Macpherson, they can only operate if “some unspecified minister, in consultation with the minister of health, issues direction which exempts certain unspecified ‘categories’ of services”.
“These directions have not been issued,” Macpherson said in the affidavit.
“There is no certainty about whether they will ever be issued, and if so, what categories will be exempted from ongoing prohibition, and under what conditions and circumstances. Parliament has not delegated authority to the minister in the Disaster Management Act to indefinitely prohibit the operation of an entire industry. If it has, that delegation is unconstitutional.
“The blanket ban on the personal care services industry operating is irrational, arbitrary and unreasonable. The industry is made up of small businesses and employs hundreds of thousands of people across South Africa who are precluded from earning a living.
“Almost all other economic activity is permitted to resume under level 3, subject to hygiene protocols. So too are religious gatherings and professional sports. There is no rational basis for the indefinite exclusion of this industry.”
There are about 90,000 people active in the hair and beauty sector, which is worth about R300bn.
The industry has been lobbying hard for a return to work, through petitions, a failed court challenge and Facebook group called SA Hairdressers in Lockdown 2020, where they have vented their frustrations. They argue that beauty salons are safer and more hygienic than many businesses that were allowed to trade on level 4.
The Employers Organisation for Hairdressing, Cosmetology and Beauty said previously it had been engaging with the government to ascertain under which conditions they could reopen. The industry said it thinks it is possible for establishments to open should they be able to adhere to social distancing of 1.5m between customers.
Up to 70% of the country’s hair and beauty salons, spas and tattoo parlours face closure as their businesses remain under lockdown, the organisation said.
It has also threatened to go to court, saying the department failed to meet its “self-invoked” deadline to publish health protocols and guidelines on June 5, which would have led to personal care services being reintroduced under level 3.
At the end of May, trade and industry minister Ebrahim Patel explained the government’s concerns. He said because these businesses cannot operate without some kind of physical contact, making sure they open safely would be vital.
“We’ve seen that as companies and industries reopen, even the ones where workers don’t have to work in physical contact with each other, there has been an increase in infections. At some stage, this translates to more South Africans dying. It is a very serious issue in which we need to work cautiously and carefully,” Patel said during an economic cluster briefing on level 3 restrictions.