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STATE OF DISASTER DECISIONS

Court orders Nkosazana Dlamini Zuma to release records on rationale behind Covid-19 lockdown regulations

Court orders Nkosazana Dlamini Zuma to release records on rationale behind Covid-19 lockdown regulations
Nkosazana Dlamini Zuma, South Africa’s Minister of Cooperative Governance and Traditional Affairs. (Photo: Gallo Images / Darren Stewart)

Following a series of delays, including the failure to file an opposing affidavit, Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini Zuma was ordered to make available the records of decision-making for Covid-19 regulations issued under the State of Disaster since March 2020.

Minister of Cooperative Governance and Traditional Affairs Dr Nkosazana Dlamini Zuma has until 9 December to release the record of decisions that led to the issuing of several regulations during the Covid-19 lockdown that started in March 2020 and only ended in April 2022. These will include the reasons for the extension of the State of Disaster

Dlamini Zuma is and has been the political head of the department where South Africa’s National Disaster Management Centre is managed. 

This follows a court case brought by the non-profit organisation Sakeliga. Dlamini Zuma had, in a lawyer’s letter, indicated her opposition to making the documents public, saying they were covered by privilege that attaches to the Cabinet. Her lawyers also filed court papers making technical objections to the court case. But she never filed opposing papers. 

As a result, the order was given on an unopposed basis. 

Sakeliga is fighting the government in court on a number of issues relating to the Covid-19 lockdown, mask mandates and the proposed health regulations. The organisation first applied for the records on which disaster regulations — which controversially introduced a hard lockdown for months and outlawed the sale of cigarettes, alcohol, sandals and roast chicken — were based, in terms of the Protection of Access to Information Act (Paia) during 2020. 

Workplaces, churches and universities remained closed for months in 2020 after a State of Disaster was announced by President Cyril Ramaphosa in March of that year. The hospitality industry was hit very hard. 

Dlamini Zuma refused Sakeliga’s Paia application and Sakeliga then filed an internal appeal, which was also refused. 


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Then Sakeliga went to court. 

Acting Judge Muvhango Lukhaimane, sitting in the Pretoria High Court, then ordered Dlamini Zuma to make the records available to Sakeliga by December 9. The documents that must be made available include:  

  • Records and documents relied on by Dlamini Zuma when she made decisions about Covid-19 regulations, including those on which decisions to extend the State of Disaster were based;
  • Reasons for the regulations; and
  • Deliberations, communications and memorandums. 

“These lockdowns and other measures did unprecedented harm to economic and social activity,” Sakeliga said in a statement after their court victory. 

“Sakeliga now expresses the hope that members of the public will use records produced in our court victory as an impetus and grounding to hold the government to account for harmful decisions of the past and to prevent such egregious abuses of power re-occurring in the future.

“It is, of course, possible that Dlamini Zuma will claim that, in large part, the records to be provided in terms of the court order do not exist. Such a reaction would confirm suspicions that improper and arbitrary decision-making processes were followed in making Covid regulations. Even more so, in that case, it would mean that the government must and can now be called to account for gravely irresponsible actions.” 

Sakeliga said it would apply for an order of contempt of court if Dlamini Zuma does not comply with its request.  

Sakeliga’s Piet le Roux said they want to disclose and analyse the records of decision-making so that they can, if necessary, be used in the public debate and possible legal action to limit the damage of lockdown decisions. 

“The records can also help prevent harmful policies and damage, going forward. Businesses and consumers may and must know on what grounds they had to shut down their businesses for extended periods, could not go to work, lost their jobs, and even why they could not buy or sell certain products such as warm chicken.” 

Le Roux said 2 million people lost their jobs because of lockdown restrictions.  

“Not everything that is relevant can be protected by Cabinet privilege,” Le Roux said.  

“One can probably do little about the damage that has already been done by poor decision-making, but the records can help put an end to harmful policies and prevent future damage. Businesses and consumers should and must know on what grounds they had to close their businesses for extended periods, could not go to work, lost their jobs and even why they — banally enough — were not allowed to buy or sell certain products such as hot chicken.” DM/MC

Gallery

"Information pertaining to Covid-19, vaccines, how to control the spread of the virus and potential treatments is ever-changing. Under the South African Disaster Management Act Regulation 11(5)(c) it is prohibited to publish information through any medium with the intention to deceive people on government measures to address COVID-19. We are therefore disabling the comment section on this article in order to protect both the commenting member and ourselves from potential liability. Should you have additional information that you think we should know, please email [email protected]"

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