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He said it would be “foolish” for the court to take on its own “crystal ball gazing”. Bozalek said there were “thousands of opinions”, which “change every day”, based on “any number” of expert views.
He questioned whether it was his court’s role to try to establish which direction the pandemic would take, or which medical predictions were the most accurate, or not.
But Viljoen countered, on several occasions, that there was a prima facie case that hair professionals had a common law and constitutional “right to life” and right to “earn a living” – if they could do so safely.
He argued this also applied to support staff at hair salons – those who shampooed clients’ hair, who produced hair dye, and many others.
“There’s a huge industry out there,” he submitted.
Bozalek said he “accepted much of what you say”.
‘There is a lot of hardship for a lot of people’
He acknowledged there were “very serious financial implications” for hair professionals. But he argued the same could be said of others – such as those in restaurants, massage parlours, tattoo businesses, and many other industries.
“There is a lot of hardship for a lot of people,” he agreed. He did not wish to “minimise the suffering”, which he understood was an “inevitable consequence” of the current lockdown.
He asked Viljoen whether some other industries did not possibly have stronger claims than hair professionals.
Viljoen agreed, but said he was not speaking for other industries – and any such industries had every right to argue their own cases.
Bozalek also asked whether the urgent application was not “moot”, in light of the expected shift to “Level Three”.
But Viljoen said there was no guarantee that parts of South Africa would not return to “Level Four”, in due course.
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He wanted the court to rule that hair professionals had the right to operate under “Level Four” – now or at any time in the future.
Viljoen said he would be happy for the state to enter into discussions with the hair industry on exact rules for the industry to practise safely.
The advocate also told the court he did not represent the formal hairdressing industry, but had made his application for urgent relief “in the interests of the public” – of hairdressers, of the support industry and those who need to be supported with the tax from the hairdressing industry. He was acting “pro bono”.
Much of the debate in court revolved around which national government minister was the correct authority for the hair industry: health or co-operative governance.
Viljoen said he was challenging the whole “national executive”.
‘Slippery slope’
In response, counsel representing the Minister of Health, advocate Adiel Nacerodien, argued that the health department was doing its utmost to protect South Africa’s healthcare industry – to protect all South African lives.
He argued “the right to life” pertained to everyone – “not just hairdressers”.
South Africa had high levels of “underlying issues”, including HIV and TB. This made it especially important for government to do its utmost to prevent the spread of the virus, the court heard.
Added to this was a challenge around “spatial layout”, of where people lived – making physical distancing difficult. This increased the need to do everything possible to reduce infection in every other possible sphere in society.
Every right, and every mitigation measure, forced the state to navigate “a balancing act”, the counsel conceded.
On the subject of “irreparable harm”, as it pertained to the hairdressing industry, he countered: “One cannot come back from death.”
This was the ultimate form of “irreparable harm”, which the court ought to prioritise.
He warned that if hairdressers were allowed to operate legally, it would be “the thin edge of the wedge”, a “slippery slope” and could open “the floodgates” – of other industries which could be emboldened to apply for a relaxation too.
He asked the court to dismiss the application with costs and questioned whether Viljoen was acting in the public interest or “self-interest” as he did not represent the formal industry in question.
Bozalek said Viljoen seemed to have been supported by many hairdressers, regardless – who had told of their desperation.
Judgment was reserved.
