Dlamini-Zuma hauled to court over latest ‘illogical’ lockdown extension

Participative democracy group Dear South Africa has filed an urgent application with the Pretoria High Court asking it to declare last week’s lockdown extension unlawful and to set it aside.

The group has given the government until Wednesday (November 18) to oppose the matter. It says the latest lockdown extension announced on Friday is illogical and was done without parliamentary oversight, as required by the constitution.

Read: Government told to provide evidence for ongoing lockdown or prepare for court (Oct 22)

The only respondent in the case is Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini-Zuma. Papers were served on the minister on Monday.

The lockdown extensions are allowed in terms of the Disaster Management Act only to protect and provide relief to the public, or to prevent disruption and deal with the disruptive effects of the pandemic.

The latest stats show that just over 20 000 people have died in SA from the virus, while the original objectives of imposing the lockdown in March – slowing the spread of the virus to prevent the health system being overwhelmed – have been achieved.

“South Africa is no longer faced with the uncertainties that it was confronted with when the initial state of disaster was enacted,” says Daniël Eloff of Hurter Spies, the attorneys representing Dear SA.

Read: Ramaphosa surprises with further easing of Covid-19 restrictions (Nov 11)

“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.”

Constitutional rights

In an affidavit for Dear SA, director Rob Hutchinson says the minister is able to extend the lockdowns ad infinitum without parliamentary oversight, while the constitutional rights of South Africans are being infringed. These rights include freedom of movement, residence, assembly, economic activity and education. Businesses were shut down at the start of the Covid-19 lockdown, schools were closed, and citizens’ rights to move and practice their professions and trades were severely curtailed.

In a statement issued on Monday, Dear SA says while it may have been rational to declare a state of disaster in March when little was known about the virus, much has changed since then. More is known about the risks associated with the Covid-19 virus and many of the measures implemented since March have had little or no effect on curtailing its spread. For example, closing schools, when we now know that children under 19 are not at risk of dying from the virus, while those under 50 suffer minimal risk.

Lockdowns will not save the lives of those who contract Covid-19 and do not require hospitalisation, according to Dear SA.

“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%.”

Yet 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, GDP contracted by more than 16% or 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 Statistics SA.

Dear SA also draws attention to the contradictory and often wildly inaccurate modelling used by government to implement policies.

“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.”

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.

Reasons given for seeking to set aside and declare the extension unlawful include:

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

The fact that the Disaster Management Act is being used by the minister to impose perpetual lockdown extensions is both irrational and unlawful, and “undermines our constitutional democracy, premised on a genuine separation of powers,” according to the application.

Read: Dlamini-Zuma told to amend invalid lockdown regulations (Jun 3)

One of the reasons being cited for the lockdown extensions is the threat of a second wave of infections occurring. If this does occur, the state has had ample time to prepare 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 court application.