The urgent application by civil society group “Dear South Africa” to set aside the extension of the lockdown by the government will only be heard by the Gauteng High Court, Pretoria, sometime in January.
The application was yesterday on the court roll, but the group decided to refile its challenge early in the new year to allow the government sufficient time to prepare responses.
Minister of Co-operative Governance and Traditional Affairs Dr Nkosazana Dlamini Zuma was served with papers two weeks ago and has so far not submitted a response, although she intends opposing the matter.
Health Minister Dr Zweli Mkhize has, meanwhile, launched an application to intervene in the matter.
Dear South Africa director Rob Hutchinson said they would call on Mkhize to supply his reasons to persist with the state of disaster and precautions, despite conflicting evidence and opinions regarding its effectiveness.
“We decided it would avoid a lot of time-wasting technical arguments to refile the case in January, after the court break, by which time the two relevant ministries will have had time to formulate their responses,” he said.
This is a case that must be brought before the courts as soon as possible, he said.
“This is something that we know has huge public support, given the responses to the various campaigns where we canvassed public opinions on the lockdown and the impact they are having on the country.”
The organisation will ask the court to declare unlawful and set aside the lockdown extension declared by Dlamini Zuma on November 14.
While this extension runs until December 15, Hutchinson said in court papers that it would in all likelihood be extended.
“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,” he said.
The organisation will argue that the tool being used by the government to impose the lockdown 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. These rights include the right to earn a living, move around and assemble.
Hutchinson said Dear South Africa was obligated to bring the court challenge to determine the limits of government power and prevent further infringements of human rights.
He said the overwhelming majority of respondents to various of the organisation’s participation campaigns believed the government had overstepped its powers and that the lockdown represented an abuse of power.
“The rationale behind the DearSA court action is that the original purpose for imposing lockdown – to prevent the health system being overwhelmed by a virus about which we knew little at the start of the lockdown – 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.”
The organisation will argue that lockdown measures have had a devastating impact on the economy. 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 Organization calculates has had a global infection fatality rate of less than 0.2%.”
Hutchinson admitted in his affidavit that there was the possibility of a second Covid-19 wave, but said the government had plenty of time to prepare for this.
He said the first wave did not overwhelm the hospital system, but if the situation changed, a new state of disaster could be declared based on the new circumstances that could 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,” he said.