On Thursday, 28 January 2021, the Supreme Court of Appeal in Bloemfontein dismissed, with few notable successes, the appeal brought by a group of eight unknown Capetonians against the Minister of Cooperative Governance and Traditional Affairs, Dr. Dlamini Zuma, the President Mr. Ramaphosa and others. This appeal related to the dismissal of an application during mid-last year in the Western Cape Division of the High Court where the appellants attempted to challenge the Disaster Management Act Regulations and the legitimacy of the National Coronavirus Command Council (NCCC).
In response, Liberty Fighters Network (LFN) says that this outcome will neither affect the pending appeal brought by the Minister against the 2 June 2020 Court order which declared most Disaster Management Act Regulations as unconstitutional and invalid, nor will it change the existing impact of the very Court Order when used in defence against criminal prosecution of the DMA Regulations.
LFN President Reyno De Beer, says that the arguments and approaches in both cases are much different and at no stage overlapping. “The appellants in the Esau case, for unknown reasons, never challenged the severity of the claimed COVID-19 pandemic or compared it to the reaction to other known similar diseases and accepted the general narrative” states De Beer. This is also the problem in all other dismissed lockdown cases which served before our High Courts.
Regular litigants like the Democratic Alliance, AfriForum, Solidarity, and Freedom Front Plus, for example, accepted the severity of the claimed COVID-19 pandemic and resultantly the country’s jurisprudence started to align itself with the unchallenged version to COVID-19.
LFN finds it odd that this matter was heard already by the SCA on 2 November 2020, while it’s own appeal matter is dragging feet. On 24 June 2020, senior counsel for the Minister, Wim Trengove SC, indicated at the hearing of her application for leave to appeal, that the Minister would want to urgently deal with her appeal. Up till date, there is no indication that the Minister wanted to expedite the LFN matter as she had done in the Esau instance.
“Not only don’t we know much about the case itself and the ‘stealth’ group of freedom fighters, but the arguments of the group’s senior legal team merely touched on the real concerns in respect of the regulations and they never seem to have managed coming up with any solid arguments comparing to those raised by us to attack the constitutionality and validity” stated De Beer.
“It was as if the litigants wanted to fail as trivial as it sounds. I wonder who has paid for the two senior legal counsel for these students which bill could easily have run into the millions of Rand…” De Beer frowned.
The further difference is, that LFN raised a total of four preliminary points with the SCA in which it essentially believes that the Court order already came into operation on 24 June 2020 making those DMA Regulations null and void, alternatively that the Court order was a supervisory order with interim effect and the High Court was never finished with its functions by the time the Minister lodged her appeal processes.
While LFN and De Beer are still awaiting the outcome of their latest Court challenge heard 19 days ago, requesting the Court to hold the Minister in Contempt, they are unsure whether Davis J would find it anyhow tempting to refer to this SCA judgment in the ruling while no party had any opportunity to have argued against it. “We don’t want to speculate at this stage at all” says De Beer.
However, it appears further that in similar fashion as in the August 2020 Court challenge, Government was forced last night to relax numerous of the regulations LFN highlighted in it’s latest court case. “It would have been awkward again for Cabinet if the judgment came out to be in our favour and the national executives have not relaxed those measures on their own accord beforehand. If I was in the President’s shoes, I would have done exactly the same to prevent further embarrassment by facing yet another possible court defeat on account of self-represented litigants” grinned De Beer.
Whatever the outcome in the awaited judgment, LFN will be ready to respond in the most suitable way. The SCA has not made any hearing date known, while the judgments in the application for leave to cross-appeal and the Minister’s application for condonation for late lodgement of her additional appeal, are still outstanding.
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