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Dear South Africa asks high court to set aside latest lockdown

Intro: The lockdown restrictions are illogical and are done without Parliamentary oversight

Participative democracy group Dear South Africa has filed an urgent application in the Pretoria High Court to set aside the lockdown extension imposed on 13 November 2020.

The court application says the lockdown extensions are illogical and are being done without Parliamentary oversight, as required by the Constitution.

NDZ-state of disaster - DearSA

The only respondent in the case is the Minister of Cooperative Governance and Traditional Affairs, Nkosazana Dlamini-Zuma. She has until 18 November 2020 to oppose the matter.

Dear South Africa is also asking the court to declare the latest lockdown extension under the Disaster Management Act unlawful.

“South Africa is no longer faced with the uncertainties that it was confronted with when the initial state of disaster was enacted,” says Daniel Eloff of Hurter Spies, the attorneys representing Dear South Africa. “Consequently, government cannot continue to piggyback on a state of disaster for which the underlying and motivating reason has largely dispersed eight months since the initial declaration of the national state of disaster.”

In an affidavit before the court, Dear South Africa director Rob Hutchinson argues that Constitutional rights have been curtailed by the disaster regulations, including the rights to freedom of movement, residence, assembly, economic activity and education.

Businesses were shut down at the start of the Covid lockdown, schools were closed, and citizens’ rights to move and practice their professions and trades were severely curtailed.

“While many of these restrictions on fundamental rights have been lifted, the (minister) has imposed these restrictions without parliamentary oversight and may reimpose them. The (minister) is empowered to extend the state of disaster monthly ad infinitum without such oversight,” says the court application.

Regulations under the act may only be made to: protect or provide relief to the public; protect property; prevent or combat disruption; deal with the destructive and other effects of the disaster.

The original purpose of the lockdowns which commenced in March 2020 was to “flatten the curve” and slow the spread of the Covid-19 virus. Little was known about the virus at the time. Now we know much more.

Lockdowns will not save the lives of those who contract COVID-19 and do not require hospitalisation, according to Dear South Africa. Expert analysis by medical experts and epidemiologists conclude that the case fatality rate from the virus is 0% for those under 19, and for adults under 50 it is 0.5%.

The case fatality rate for SA is 2.7%. The World Health Organisation (WHO) noted on 22 October 2020 that 10% of the world’s population were reckoned to have been infected with the virus. Of these, 1.3 million people have died as of 14 November 2020, an infection fatality rate of 0.17%.

The lockdown measures have had a devastating impact on the SA economy. During April, May and June, when the most severe lockdown restrictions were in place, gross domestic product contracted by more than 16% giving an annualised decline of -51%. By comparison, in 2009, during the global financial crisis, the annualised decline was -6.1%. In the second quarter of 2020 alone, SA shed 2.2 million jobs, according to StatSA.

The South African Centre for Epidemiological Modelling and Analysis (SACEMA) provided models to the National Institute for Communicable Diseases (NICD), though it was not aware that these models were being used to inform policy. SACEMA abandoned its model soon after it was published and advised that it was not a tool for decision-making. That model’s replacement, the NICD’s “Epi Model” has not been updated since June 2020 and also appears to have been abandoned. When last updated, it forecast 40 000 deaths by the end of November 2020 – which has also proven to be wildly inaccurate. The actual number of fatalities currently sits at just above 20 000.

South Africans appear to have a high level of compliance with recommended rules regarding sanitation, wearing of masks and social distancing.

Dear South Africa says the recent extension of the lockdown is an “administrative act” which is reviewable by a court in terms of the Promotion of Administrative Justice Act (PAJA). Reasons given for seeking to set aside and declare the extension unlawful include:

  • They were not rationally connected to the purpose for which they were taken
  • Irrelevant considerations were taken into account, or relevant considerations ignored
  • The extension is unconstitutional and unlawful.

While it may have been rational to have declared a state of disaster in March, much has changed since then. It is no longer rational to have the declaration in place and it should not have been extended.

The state of disaster grants the executive the power to pass draconian legislation which weakens the rights of all those who live in South Africa. The state of disaster can be extended ad infinitum by the minister without a requirement of parliamentary oversight. This has occurred, and continues to occur, which undermines our constitutional democracy, premised on a genuine separation of powers, says the court application.

If a second wave of infections occurs, the state has had ample time to prepare for this and a new state of disaster could be declared based on new circumstances that may arise. “It is improper to keep the current state of disaster perpetually in force on the basis that some new disaster may occur on some unknown date,” says the application.

Letter to Minister Dlamini-Zuma (current challenge)

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