Contempt, masks and lockdown measures: LFN before the Pretoria High Court, again

Yesterday, on 12 January 2021, LFN’s Reyno de Beer faced Minister of CoGTA, Dlamini Zuma’s legal team; now for the fourth time.

This urgent application intertwined with the ongoing legal battle between the Minister and LFN, which is now before the Supreme Court of Appeal. There, the Minister wishes to have set aside the essential nullification of all lockdown measures imposed by her under the Disaster Management Act, as per the Pretoria High Court judgment of 2 June 2020 in favour of LFN.

Even though the Minister had applied for leave to appeal, and was granted to do so, some elements contained in the original order had been excluded. Among them where the criminalization of alcohol sales and, importantly, the closures of beaches and Parks.

To appeal those, she applied to the Supreme Court directly and was also granted leave to appeal. But then she forgot to follow this process and, instead, closed the beaches just in time for the Christmas holidays and re-invented a new Level 3.

“That”, so LFN President de Beer, “is precisely what brings in the charge of Contempt of Court. While she didn’t follow an order made by a court, fully applicable to her, she tried to write herself out of the obligation to do so, which is another offense. Court orders are binding for everybody, regardless of who they are”, he said. If found guilty, immunity will not apply to the Minister.

Other matters raised were the compulsory wearing of face masks and the criminalization of so-called offenders. De Beer pointed out that, for the first time, the Minister had provided actual source information on which she had relied in her decisions. As it turns out, even the World Health Organisation itself does not prescribe any “social distancing” in preventing onward infections of Covid-19; the instead recommended “physical distance” prescribes a minimum of one meter only. Further, face masks are only recommended outdoors where this physical distance cannot be maintained.

While WHO as per its own documentation does not require the mandatory wearing of face masks, criminalisation of offenders is not recommended in the event of a local or national authority enforcing masks or other measures.

Underpinning the urgency of the matter were the events in Sebokeng of last Sunday where despicable and likely illegal conduct by the SAPS had resulted in injuries and arrests of church goers, for no good reason. While the mentioning of details resulted in strongly raised eyebrows by the judge, the Minister’s legal representative was quick to mention that such conduct was not a problem of regulation but one of implementation and that, therefore, it should not result in the condemnation of his client. Same was rebutted by Mr Mothopeng, appearing on behalf of the amicus in this matter. Judgement was reserved.

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