South Africa’s lockdown and state of the disaster rules face new legal challenge

Business interest group Sakeliga has lodged a court application to compel the government to disclose its grounds for the state of disaster, disaster management regulations and lockdown levels.

The court application forms part of a process, in terms of the Promotion of Access to Information Act, to obtain Nkosazana Dlamini-Zuma’s records of decision-making regarding the lockdown and all disaster management regulations, Sakeliga said.

In terms of the Disaster Management Act, Dlamini-Zuma as minister of Cooperative Governance and Traditional Affairs is the person responsible for enacting these regulations.

“The goalposts for when the restriction must be lifted, are constantly shifting. President Cyril Ramaphosa’s point of view this past Sunday, that the restrictions will continue until an acceptable number of people have been vaccinated, contradicts the earlier rationale that restrictions are a temporary step and is only intended to flatten waves of infection,” said Piet le Roux, chief executive of Sakeliga.

“This previous standard, as well as hospital capacity and number of deaths, are now inexplicably shifting to the background. The shifting of goalposts, without transparency, is detrimental to the social, economic and constitutional order.”

Sakeliga intends to disclose the information obtained through this process for the consideration of civil society and the general public, le Roux said.

“The drastic restrictions, their cost and now the question of forced vaccination are factors that must be examined with great care. The decisions that led to nearly two million more people being unemployed today compared to at the beginning of last year need to be thoroughly investigated.

“Yet, president Ramaphosa has not held a single media conference since the beginning of the lockdown period to answer questions about the government’s strategy.

“There is a veil of secrecy when it comes to making and amending decisions regarding restrictions. The court application is therefore aimed at forcing the person legally responsible for the decisions, namely Minister Dlamini-Zuma, to disclose her records of decision-making for public inspection,” said Le Roux.

To justify her refusal to disclose the information to Sakeliga, Dlamini-Zuma said that her decisions were protected by cabinet privilege, the group said.

However, this cannot be the case for all the information relevant to her decisions, as the law is clear that she must exercise her judgment in enacting regulations, Sakeliga said.

It argued that not everything that is relevant can be protected by cabinet privilege. Sakeliga has therefore requested that the court compel her to make available the records of decision-making, which are not protected by cabinet privilege.

Sakeliga wants to disclose and analyse these records so that, if necessary, they can be used in public debate and possible legal action to limit the damage of current and future decisions regarding restrictions.

“One can probably do little about the damage that has already been done by poor decision-making, but the records can help put an end to harmful policies and prevent future damage.

“Businesses and consumers should and must know on what grounds they had to close their businesses for extended periods, could not go to work, lost their jobs and even why they – banally enough – were not allowed to buy or sell certain products such as hot chicken,” Le Roux said.

Sakeliga said that the minister now has the opportunity to submit opposing papers to the court.

Read: South Africa’s never-ending national state of disaster

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South Africa’s lockdown and state of the disaster rules face new legal challenge