Liberty Fighters’ argument before the Constitutional Court at the next level

On 10 March 2021 nine judges of the Constitutional Court unanimously ruled that the application for leave to appeal by Liberty Fighters Network (LFN) and its President, Reyno De Beer, in which they challenged the constitutionality and validity of the National State of Disaster, was refused. The application had been lodged one week earlier.

“This unexpected verdict opened a Pandora’s Box,” De Beer said. He is now pondering whether the Constitutional Court might possibly have acted as independently as it should. “This one paragraph judgment was, with respect, flawed with no less than five fatal, errors. It led us to lodge an Application for Rescission of that Court Order with the Constitutional Court”, he says.

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For instance, the original notice of motion states that the responding Minister, Dr. Dlamini-Zuma, had been afforded to file her own opposing papers by 17 March. Yet, one full week before that date, the dismissal order had already been made. By that time the Minister had, unsurprisingly, not yet lodged her papers which would have to have been substantive.

While this not only prevented her arguing as to why the declaration of the NSD was legally proper which is, in De Beer’s view, “entirely unjust, in respect of herself and 60 million other South Africans who have a right to know,” the Constitutional Court’s premature adjudication might also have prevented the Minister from lodging a cross-appeal from her end.

Since the order dismisses the application on only one ground, and that ground being the alleged lack of prospects of success, the question arises “how it might be possible for any judge to adjudicate a matter without having any knowledge of the respondent’s argument,” De Beer says and provides the modest answer himself: “It is simply impossible. The practices prescribe that the document sets of both litigants must be before the court, unless the Minister wanted to abide by the Court’s decision. We are unaware of any court order stating that suddenly two can equal one. Therefore, one was missing,” he says.

In essence, the Rescission Application claims that the Court has erred in refusing leave to appeal in that it did not have sufficient information at hand to adjudicate the matter; that the court rules were not followed and that one of the Applicants cited in the order (LFN) was not even properly before the court. The Minister now has until Monday, 10 May 2021, to notify the Court whether she intends to oppose this application.

Download the complete Rescission Application…

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