DearSA’s lockdown court action postponed

… to allow Ministers Dlamini-Zuma and Zweli Mkhize an opportunity to file adequate responses.


The Minister of Cooperative Governance and Traditional Affairs (COGTA), Nkosazana Dlamini-Zuma, was served papers three weeks ago and has failed to submit a response, although she intends opposing the matter.

Furthermore, the Minister of Health, Zweli Mkhize has belatedly launched an application to intervene in the matter. DearSA will call on the Minister for his reasons to persist with the State of Disaster and ongoing health precautions, despite conflicting evidence and opinions regarding the effectiveness.

No formal responses in court papers have so far been received from either party.

DearSA intends refiling its court action challenging lockdown extensions early in the New Year to allow the government sufficient time to prepare their responses.

“We decided it would avoid a lot of time-wasting technical arguments to refile the case in January 2021, after the court’s break, by which time the two relevant ministries will have had time to formulate their responses,” says DearSA director Rob Hutchinson. “This is a case that must be brought before the courts, as this is something that we know has huge public support, given the responses to the various campaigns where we canvassed public opinions on the lockdowns and the impact they are having on the country.”

“It is likely that had we gone to court on 1 December, denying the ministers an opportunity to respond, the court would have kicked us out with costs – putting an end to any further challenges from anyone. Furthermore, our bank account was frozen for reasons unknown. However, the delay places us in a far stronger position in Jan as there will be substantially more data in our favour.”

DearSA is working closely together with Liberty Fighters Network and PANDA to ensure a successful approach in Jan.

On Monday 16 November, DearSA served papers on the Minister of Cooperative Governance and Traditional Affairs, Nkosazana Dlamini-Zuma. DearSA asked the Pretoria High Court to declare unlawful and set aside the lockdown extension declared by the Minister on 14 November 2020. Several groups plan to join DearSA as friends of the court, including Pandemic Data and Analytics (PANDA) and Liberty Fighters Network (LFN). Other groups have also indicated their desire to join the court action.

Given the delay in having the court action heard, there is a likelihood that the government will extend the lockdown yet again over the Christmas period.

The tool being used by the government to impose these lockdowns is the Disaster Management Act, which is intended for disasters of a temporary nature, and should not be used as a blunt instrument with which to severely restrict the Constitutional rights of South Africans, such as the right to earn a living, move around, and assemble.

Hutchinson says DearSA is obligated to bring this court challenge to determine the limits of government power and prevent further infringements of human rights.

The overwhelming majority of respondents to various DearSA participation campaigns believe the government has overstepped its powers and that the lockdowns represent an abuse of power.

The rationale behind the DearSA court action is that the original purpose for imposing lockdowns – to prevent the health system being overwhelmed by a virus about which we knew little at the start of the lockdowns – has been achieved. Evidence of this is the fact that the government has closed down temporary health facilities that were hastily assembled for this purpose. The health system has not been overwhelmed, notwithstanding a rise in infections in the Eastern Cape and Western Cape.

DearSA’s court papers argue that lockdown measures have had a devastating impact on the SA economy. In the first three months of lockdown, GDP contracted by more than 16%, giving an annualised decline of -51%. In the second quarter of 2020 alone, SA shed 2.2 million jobs, according to Statistics SA.

The court action challenges the rationality of government’s catastrophic actions on the economic welfare of the country, in the name of saving South Africans from a virus which the World Health Organisation (WHO) calculates has had a global infection fatality rate of less than 0.2%.

“We have decided to give Minister Dlamini-Zuma and Health Minister Mkhize time to formulate their responses to our court papers. This is a case that we believe is vital to the future wellbeing of the country as it will determine the limits of state power no and in the future when it comes to disasters of this nature,” says Hutchinson. “Our case is not going away. It must, and will, be heard early in the New Year.”