Just when it started to look as if the South African judiciary was recuperating from a rough period in which its independence was pushed to the edge, social justice organisation Liberty Fighters Network (LFN) and it’s President Reyno De Beer lodged an application in the Supreme Court of Appeal yesterday, requesting that all allocated judges to the well-known Minister Dlamini-Zuma Lockdown Regulations appeal, recuse themselves. The hearing for the appeal by Dlamini-Zuma had, after lengthy exchange of arguments, be changed from an actual open court hearing to a virtual appearance by the parties on Wednesday, 26 May 2021 (tomorrow). The judges named in the Application – Navsa, Ponnan, Mbatha JJA and Rogers and Unterhalter AJJA – are now bound to determine whether they can still be presumed to be independent.
In South Africa it is practice that the judge accused of being biased by a party makes the decision to be recused or not. In the vast majority of previous recusal applications before South African courts, judges decided not to recuse themselves.
While the Pretoria High Court on 2 June 2020 had ordered the Minister to align her Lockdown Regulations with the Constitution, the Minister never complied with that order and opted to appeal the judgment believing that the Court order would remain suspended. Subsequently, since 24 June 2020, LFN and De Beer informed the public that the Court order in question was never suspended. The basis for the argument are previous Constitutional Court judgments, confirming that the DMA Regulations have prescribed and that something which no longer exists in legal terms, cannot be revised in a proceeding. In consequence of this argument, the Minister unlawfully continued to make amendments as if she was above the law.
In the recusal application, LFN and De Beer state that they insisted on a hearing in an actual and open court because the Minister’s DMA Regulations had not yet been adjudicated. “By literally going out of its way to accommodate the Minister’s senior legal team, plus that of the ‘Friend of the Court’ – who’s argument, in our view, ads no value to the process – the SCA gave rise to our suspicion that the ‘presumed innocence’ of the Court had left the building,” De Beer said. “Another concern is that it appears as if the judges ‘outsourced’ their decision to go virtual to an administrative party. This could mean that the allocated judges even breached their oath of office and deviated from the legal norm to assist the official narrative.”
LFN will continue its efforts to support real justice for all throughout South Africa.
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