Lockdown: Less restrictive measures existed to manage Covid-19, says LFN in court papers

• The Liberty Fighters Network and Reyno de Beer have applied for leave to cross-appeal the minister of cooperative governance and traditional affairs in the matter involving the declaration of lockdown regulations as unconstitutional.
• The two argue there existed less restrictive mechanisms, which also preserved human rights, to manage the Covid-19 pandemic.
• They said the declaration was based on advice that was unconfirmed and unreliable. 

Less restrictive mechanisms which uphold human rights exist to deal with Covid-19, instead of the national state of disaster, the Liberty Fighters Network (LFN) and Reyno de Beer have argued in court papers.

On Monday, the two parties approached the Supreme Court of Appeal (SCA) to file an application for leave to cross-appeal a high court judgment in their battle with the minister of cooperative governance and traditional affairs (Cogta) and the president.

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In his high court judgment, Judge Norman Davis ruled that certain Disaster Management Act regulations were unconstitutional and invalid.

The LFN and its president De Beer argue that Davis erred in some aspects of the case, saying they believe "a different court would reasonably come to a different conclusion".

International Health Regulations Act

In court papers filed with the SCA, the pair argued that the declaration of the national state of disaster was unlawful because it used to the Disaster Management Act to do so.

"We say so because the International Health Regulations Act… [IHRA] could have adequately provided for dealing with Covid-19 under which the President could have enacted proper regulations which would have been overseen by Parliament and the [National Council of Provinces] NCOP," they said.

They added that the IHRA catered for "any disease" with a focus on the "full respect for the dignity, human rights and fundamental freedoms of persons".

This was something the Disaster Management Act lacked, they reasoned.

"There is no reason why the Cogta Minister had to resort to the [Disaster Management Act] DMA when, in fact, legislation existed that provided a less restrictive mechanism to deal with the Covid-19 pandemic properly controlled by the President, Parliament and the NCOP."

National state of emergency

In addition to this, the parties say it would have been "less restrictive" if the Cogta minister "allowed Parliament" to declare a national state of emergency.

This would not only have allowed for the United Nations to appoint a special oversight committee to ensure that basic human rights were protected through international laws, but it would also have had less limitations than the Disaster Management Act has had, they said.

However, the minister gave no reason why the national state of disaster was declared in terms of the Disaster Management Act while both the IHRA and national state of emergency "were discarded notwithstanding that both would have had executive oversight", the pair added.

Incorrect advice

The declaration of a national state of disaster was irrational because it was based on advice related to unconfirmed and unreliable medical and health results which did not take South Africa's "unique socio-economic conditions into consideration", they argued further.

They added that by the time the minister declared the national state of disaster, the World Health Organisation (WHO) did not have a separate ICD-10 code for the virus. This is a code used in the International Classification of Diseases and Related Health Problems which uses a description of medical and health information to form a code.

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They said that, at this point, the figures relied on were only speculative.

"Covid-19 was only allocated its own ICD-10 code from 1 April 2020 when the country was already in hard lockdown and therefore the [national state of disaster] NSD could not have been declared rationally to react to the Covid-19 disease".

Cogta Minister Nkosazana Dlamini-Zuma filed an appeal to the Supreme Court of Appeal earlier this month, saying many of the regulations were not in existence when the court heard the matter, News24 reported.

Her application follows her attempt to file an appeal in the high court, which Judge Davis granted but only for the "blanket" declaration that regulations governing the lockdown were invalid.

Davis said Dlamini-Zuma had 20 days to amend six of the alert Level 3 regulations which the court found were irrational.

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