Dear SA files urgent court application to challenge lockdown extension

Dear SA has hauled Cogta minister Nkosazana Dlamini-Zuma to court to challenge the extension of the national state of disaster.
Dear SA has hauled Cogta minister Nkosazana Dlamini-Zuma to court to challenge the extension of the national state of disaster.
Image: Thuli Dlamini

Dear South Africa has filed an urgent application in the Pretoria high court asking it to review and set aside the extension of the national state of disaster.

The civil rights organisation also wants the court to declare the extension of the national lockdown as unlawful.

Last week President Cyril Ramaphosa announced the lockdown would be extended for another month.

Rob Hutchinson, director of Dear SA, said in an affidavit filed in court that the peak of the Covid-19 wave had passed in August, and there was clear data for public health experts to track and predict future infections.

“SA is no longer faced with the uncertainties it was confronted with when the initial state of disaster was enacted and declared,” said Hutchinson.

He said the circumstances that prompted the declaration of the national state of disaster had disappeared.

“There is also patently no requirement to augment existing measures, and the state has reduced such measures over time with no material impact on infections or mortality," he argued.

He said the latest lockdown was reviewable on the grounds that:

  • it was not rationally connected to the purpose for which it was taken or the purpose of the empowering vision;
  • irrelevant considerations were taken into account or relevant considerations were not taken into account when extending the state of disaster; and
  • it 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,” Hutchinson argued.

He said there was a possibility of a second wave of infections, but the state had sufficient time to prepare for it.

According to Hutchinson, the first wave of infections did not overwhelm the hospital system.

“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,” argued Hutchinson.

He said the application was urgent as the national state of disaster had just been extended and the extension would be in effect for another month.

He said there were limitations under the current lockdown, including on people's rights to freedom and security of the person, freedom of religion and freedom of assembly, as well as the rights to political rights, and to freedom of trade, occupation and profession.

The organisation sent a letter to co-operative governance & traditional affairs (Cogta) minister Nkosazana Dlamini-Zuma in October seeking reasons for the extension of the lockdown or face litigation.

Dlamini-Zuma has until November 18 to oppose the matter.