The government will face yet another legal challenge over the legality of the lockdown when the Liberty Fighters Network (LFN) and its president Reyno de Beer bring an urgent challenge in the Gauteng High Court in Pretoria on Wednesday.
LFN, which identifies itself as a renegade social justice organisation, is challenging the legitimacy of all the lockdown regulations promulgated by the Minister of Cooperative Governance and Traditional Affairs, Nkosazana Dlamini-Zuma, since March this year.
The group is represented by advocate Zehir Omar.
Omar has also filed a notice to invite any person or organisation, who wants to make any further input in the matter, to be admitted as amicus curiae (friends of the court).
In the founding affidavit, De Beer stated that LFN is not only bringing the application on behalf of the organisation, but also in the interest of justice and in the interest of South Africans who fell victim to the lockdown measures.
De Beer said he believed the court would provide proof that Dlamini-Zuma’s approach to the pandemic was irrational and that the regulations were entirely unlawful.
“The Democratic Alliance and the Freedom Front Plus both announced on Thursday, 14 May, not knowing about the LFN application, that they would be lodging their applications on Friday, following different lines of argument as that of LFN and only limited to certain parts.
“However, none of these applications is as far-reaching as the LFN one. By the time, the DA and FF+ matters will be heard, LFN will either have been victorious or would have already applied for leave to appeal,” said De Beer.
“Any regulations promulgated under the Disaster Management Act (DMA) must comply with the Constitution and must be referred to the National Council of Provinces (NCOP). This process was not followed, rendering the regulations unlawful for that reason alone.
“We will also say that the declaration of the National State of Disaster was irrational and overall questionable, specifically because Dlamini-Zuma failed to take South Africa’s unique socio-economic conditions into consideration; something of which she is well aware.
“Specifically, we will state why the prohibition on gatherings is invalid and why the current regulations conflict with legislation enacted by Parliament. In fact, the current regulations effectively prevent any protest against the actions of the government in relation to the declaration of a National State of Disaster,” said De Beer.
He added that the decision to utilise the DMA to manage the current coronavirus crisis is unlawful, for a host of reasons.
De Beer said there was already legislation under which President Cyril Ramaphosa could have enacted proper regulations, which would have been overseen by Parliament and the NCOP.
“We allege that the lockdown regulations have violated almost all clauses in the Bill of Rights of most of our citizens, and that Dlamini-Zuma has especially humiliated and trampled upon the dignity of the vulnerable citizens and guests of South Africa,” De Beer said.
On Monday, Ramaphosa said every South African had the right to approach the courts and even he, as president, could never stand in the way of anybody exercising that right.
In his weekly newsletter, the president said: “While we would prefer to avoid the need for any legal action against government, we should accept that citizens who are unhappy with whatever action that government has decided on implementing have a right to approach our courts for any form of relief they seek.
“This is a normal tenet of constitutional democracy and a perfectly acceptable practice in a country founded on the rule of law.
“The lockdown regulations were challenged in the very first week of the lockdown by a private citizen from Mpumalanga, who wanted an exemption from the travel prohibition to attend a funeral.”
The president outlined that there had been several legal challenges in the last seven weeks from a number of individuals, religious bodies, political parties, NGOs and from business organisations against one measure or more of the lockdown provisions they were unhappy with.
‘Criticism helps us adapt’
“Some have succeeded in their legal challenges and some have not. Some who approached the courts on the basis of the urgency of their cases had their urgency arguments dismissed, and others have found other avenues for the relief they sought. Others have subsequently withdrawn their applications following engagement with government.”
The government’s foremost priority has remained to save lives, Ramaphosa said.