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Products for the care of babies and toddlers now essential items

Government has reiterated in correspondence that it has amended disaster regulations so that the list of essential goods now includes “products for the care of babies and toddlers” during the coronavirus.  However non-governmental organisations say this does not solve the problem that mothers of newborns are unable to buy clothes for their newborn babies.

The government’s letter came in response to an urgent application made to the Constitutional Court for an order declaring that the directives governing the lockdown are unconstitutional because they do not protect newborn babies whose mothers are unable to buy clothes for them.

“If this court does not intervene on an urgent basis, the newborn babies born during the lockdown or a few days or hours before the lockdown may be left without clothes to keep their bodies warm,” said non-governmental organisations the Tebeila Institute of Leadership, Education, Governance and Training and the African Institute for Human Rights and Constitutional Litigation.

The two organisations said in their court papers — filed on Monday — that the Tebeila Institute had been approached by pregnant women and mothers of newborn babies “raising concerns that they are unable to buy clothes for the newborn babies and babies which are due to be delivered during this period of lockdown”.

The Tebeila Institute’s Thabiso Lekoko said shops selling baby clothes, blankets, towels, baby beds, and other baby accessories for newborn babies were now closed. Were they to open — because they also sold food — they would not be allowed to sell clothes, she said.

This breached section 28(2) of the Constitution, which provides that  in every matter concerning a child, the child’s best interests are of paramount importance, she said.

Newborns without clothes were also at greater risk of catching Covid-19 and of being exposed to the cold “since the season is now changing to winter and in some parts of the country it is already cold”.

Lekoko said: “It is currently unknown whether the period of lockdown will go beyond 16 April 2020 or not. It is of utmost importance that this court deals with the constitutionality of the impugned directive as soon as possible because of its ramifications on the best interest of the newborn babies.”

Lekoko said a direct approach to the Constitutional Court was warranted because going to the high court could delay matters if the case was taken on appeal. The two organisations have asked the highest court to declare the lockdown directives unconstitutional and for the declaration of a new order that “shops and businesses selling clothes, blankets, towels, baby beds, and other baby accessories for newborn babies be permitted to operate with immediate effect”.

UPDATE:

In a letter from the state attorney on behalf of President Cyril Ramaphosa, state attorney CE Snyman said the NGOs did not seem to be aware that the regulations were amended The National Joint Operational and Intelligence Structure (Natjoints) was also in the process of considering clarifying “the types of non-consumable goods which parents may obtain for infants,” said the letter.

“In the circumstances we are of the view that your clients’ application is unnecessary and we invite your clients to withdraw the application,” said the letter. Instead, the president invited the organisations to make submissions to the Natjoints.

But in a replying letter, the organisations attorneys, Mampa & Machethe Attorneys, said the problem was that retail shops in the rural areas selling baby clothes were closed.

“For example: In Bopedi Shopping Centre at Ga-Nkwana, Sekhukhune  District, Limpopo Province, the shops such as Jet Stores, Pep Stores, Ackermans, Express Stores and Dunns which sell clothes, blankets, towels, baby beds, and other baby accessories for newborn babies remain closed,” said the letter.

The organisations proposed that the president “make a public announcement … that retail shops and businesses selling clothes, blankets, towels, baby beds, and other baby accessories for new born babies shall be open from 8 April 2020”.

The organisations have asked for the case to be heard by the highest court on Wednesday April 8.

*This story has been updated to include later correspondence between lawyers for the President and for the NGOs

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

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