CO-OPERATIVE Governance and Traditional Affairs Minister Nkosazana Dlamini Zuma at an event in Durban earlier this month. An application has been brought in the Pretoria High Court to challenge the minister’s decision to extend the national lockdown until December 15.Picture: Bongani Mbatha /African News Agency (ANA)
CO-OPERATIVE Governance and Traditional Affairs Minister Nkosazana Dlamini Zuma at an event in Durban earlier this month. An application has been brought in the Pretoria High Court to challenge the minister’s decision to extend the national lockdown until December 15.Picture: Bongani Mbatha /African News Agency (ANA)

Extended Covid-19 lockdown challenged in court

By Lyse Comins Time of article published Nov 19, 2020

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Durban - SOUTH Africa’s latest extension of the Covid-19 lockdown was “irrational” and “unconstitutional” and simply a de facto state of emergency that should be declared unlawful.

This was the argument that civil rights NGO DearSA founder Rob Hutchinson presented in court papers filed in the Pretoria High Court on Monday. In them he was asking the court to review Co-operative Governance and Traditional Affairs Minister Nkosazana Dlamini Zuma’s recent decision to extend the national lockdown until December 15.

Dlamini Zuma filed a notice of intention to oppose the application on Tuesday afternoon.

Hutchinson said in court papers that his organisation had 650 000 members on its database and he had brought the application “on behalf of its supporters and donors and in the public interest”.

“It is a matter that concerns the well-being and constitutional rights of all South Africans. DearSA is committed to the continuous monitoring of the status of civil rights in South Africa, and to taking appropriate action when such rights are violated,” he said.

He added that the public had a right to “just administrative action” in terms of section 33 of the Constitution and Section 6 of the Promotion of Administrative Justice Act.

Among the court papers is a letter of demand sent to Dlamini Zuma in which Hutchison argued that “in its implementation the state of disaster is a state of emergency by a different name”.

“Among the steps implemented were steps to restore and maintain peace and order, including the deployment of the national Defence Force and the implementation of curfews,” he said.

He said that in terms of section 37 of the Constitution a state of disaster can only be maintained for 90 days before its extension must be approved by Parliament.

“No such approval has been obtained for the latest extension,” he said.

Hutchinson said the initial declaration, using the Disaster Management Act on March 15, of a national state of disaster to combat the spread of the virus had been taken at a time when scientific information was sparse and estimates of infections and fatalities were significantly higher than they turned out to be over the past seven months.

“Since then numerous regulations have been issued, some of which have constituted major derogations from the rights set out in the Bill of Rights,” Hutchinson said.

He said examples of the derogations of constitutional rights such as restrictions on freedom of movement, residence and assembly, the right to choose a trade occupation or profession freely and the rights of children to education demonstrated “the enormous power that has been vested in the executive during the state of disaster without parliamentary oversight”.

“Every one has the right to freedom of movement. They have the right to enter, leave and reside in South Africa. Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions,” Hutchinson said.

He said children of separated parents had initially been unable to visit the other parent and citizens had been deprived of work when all businesses except for essential services could not operate freely.

Hutchinson said the lockdown had had a “devastating impact” on the economy which had seen a 16% decline in GDP in April, May and June, and that 2.2 million jobs had been shed in the second quarter alone.

He said the purpose of declaring the state of disaster had been to “flatten the curve” and to prevent health-care facilities from collapsing, objectives which had been achieved.

Hutchinson said that while it may have been rational to declare a state of disaster in March, it was no longer rational to have the declaration in place and it should not have been extended.

“The state of disaster grants the executive power to pass draconian legislation that has derogated from 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,” he said.

“This has occurred, and continues to occur, which undermines our constitutional democracy, premised on a genuine separation of powers.”

The Mercury

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