Finally: State of Disaster Reaches Constitutional Court

After 10 months of exhaustive court battles, Liberty Fighters Network (LFN) and Minister Dlamini-Zuma will finally settle their score in the Constitutional Court. Yesterday, 3 March 2021, LFN lodged its Application for Leave to Appeal with this Court, after the Supreme Court of Appeal (SCA) dismissed it’s bid last month to get the National State of Disaster (NSD) declared as unconstitutional and invalid.

This follows the famous judgment by Justice Norman Davis, delivered on 2 June 2020, when he declared most of the Disaster Management Regulations as a set not complying with our country’s Constitution, but then also ruled that he found the declaration of the NSD as rational.

While the appeal of the Minister challenging the High Court’s order against her fatally flawed Regulations are yet to be heard by the SCA, two of its Judges, Ponnan and Nicholls JJA, were of the view that LFN and its President Reyno De Beer may not lodge a cross-appeal challenging the NSD in Bloemfontein too.

That SCA judgment provided LFN and De Beer with their long awaited opportunity to take the NSD to the Constitutional Court. Although the Democratic Alliance, a group of Capetonian students and a handful of others attempted to get direct access to the Constitutional Court – some with rather ludicrous arguments – LFN and De Beer are the only ones to have reached the apex Court by correctly following the full prescribed route in challenging various aspects of the NSD.

Many people have asked me why we didn’t go straight to the Constitutional Court, ” De Beer said. “We then simply had to show them that all those who tried to take shortcuts in their cases were dismissed for the simple reason that it was not in the interest of justice to have heard those matters directly by the Constitutional Court. It is not a good idea to submit yourself to a process and then not follow the rules prescribed by that process. It’s just not how it works.” The Minister is likely to oppose the application. Within about two weeks, the country will know whether the NSD will be seized for hearing by the Constitutional Court.

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