Compulsory wearing of masks ‘invalid’, ‘unconstitutional’, says LFN in court

NPO the Liberty Fighters Network (LFN) faced off with Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma in the North Gauteng High Court in Pretoria on Tuesday, arguing that she be found guilty of contempt of court for extending the national state of disaster and re-implementing Level 3 lockdown restrictions.

The NPO told the court the Dlamini-Zuma was not giving the public substantial information about the coronavirus to satisfy them on why certain measures were reinstated and “chopped and changed”.

Its president, Reyno de Beer who argued the case before Judge Norman Davis, said Dlamini-Zuma should be held in contempt for violating a court order which was handed down by the judge on 2 June 2020.

Coincidentally, Davis previously ruled in favour of De Beer and the LFN last year, finding some lockdown regulations were irrational and unconstitutional.

Arguing the case again, De Beer among other issues, submitted the NPO sought the court to declare the extension of the national state of disaster to 15 January 2021 – in terms of Section 27(5)(c) of the Disaster Management Act, 2002 promulgated and gazetted in GN 1341 GG 43993 dated 11 December 2020 – unconstitutional and invalid.

It wants the court to grant 16 orders against the minister, stating that if granted, she publish them in the government gazette a day after the judgment.

Unconstitutional

De Beer submitted the court should declare regulations promulgated and released on 29 December to be declared unconstitutional and invalid, and that Dlamini-Zuma be barred from promulgating any further regulations in terms of either Section 27(2) or Section 59 of the Disaster Management Act pending the final outcome of the appeal before the Supreme Court of Appeal in the case between the minister and De Beer as well as his organisation.

He submitted Dlamini-Zuma was not giving substantial, thorough information to the public on what “Covid-19 is all about” but instead made promulgations and gazetted regulations, adding there was lack of detail around the virus.

De Beer said: “The National State of Disaster is continuing and it’s getting more bizarre by the day.

“We as members of the public, are confused about what is going on with the regulations. The regulations are being chopped and changed every single month, at least once or twice.”

The organisation stated in its heads of arguments that Covid-19, at least, according to it, “is still a claimed disease”.

“We are not 100% sure, it’s a novel disease that is claimed [and] that only developed… There is a lot of information, a lot of research…” De Beer told the court.

The LFN said in its arguments: “We respectfully hope that this court would be courageous enough and finally deal with this ‘elephant in the room’ and start calling Covid-19 in its real independent and unbiased form: A ‘claimed’ or ‘alleged’ disease.”

It added it had previously argued there was a possibility the virus, “if it existed”, could have been around for years and the rate of infections was in fact a rate of detection, adding the submission was never addressed by the court in its initial case.

“There is a total lack of information. For the first time, as far as I know, the respondent has actually introduced in annexure NDZ 7 to her answering affidavit, as for the first time referring to the WHO [World Health Organisation] guidelines for example, in wearing of masks, dated 15 December.

“That is something that anyone can get from the internet but we would expect as citizens of this country that our ministry managing this disaster must have substantial information to clarify and explain in detail why all these measures and the extension of the national state of disaster are constantly necessary.”

De Beer submitted Dlamini-Zuma had failed to give detailed evidence why an adjusted Level 3 lockdown was necessary.

He said the LFN’s call for the minister to be held in contempt was directly linked to new measures and restrictions – for example, the wearing of masks being now becoming a criminal offence.

Although its motion stated it wished for the court to imprison Dlamini-Zuma for six months or a determined period, De Beer told the court the LFN, however, was not saying she should be “thrown in jail” but something must be done.

“We are begging and pleading to this court to do something in its wisdom – to do something that can force the minister to comply.”

Wearing of masks

The organisation called for the court to declare the compulsory wearing of masks – and the compulsory closure of churches and other places of worship – unconstitutional and invalid.

“There hasn’t been a proper assessment of the mask-wearing and the minister has not given out a section 83 application and addressed the matter on the basis of evidence that we have presented.

“You cannot force someone to wear something even though that very compulsory wearing of a mask could actually affect the health of that person,” De Beer said.

He added a survey conducted by the organisation in which more than 3 000 people participated, found the vast majority said it was not right to enforce the wearing of a mask.

Although the LFN believed the case was urgent, Nkosazana-Dlamini Zuma’s legal representative, Wim Trengove SC, submitted it was not.

Trengove said the reliefs sought by the NPO were wide-ranging, countering the arguments brought to the court were not based on evidence.

Touching on the issue of masks, he added masks were worn worldwide – and they had been around for a “long time”.

“There is a universal consensus that it is for the benefit of all of us that we wear masks in public, precisely because each of us wears a mask for the protection of others, not for our own.”

Trengove said Dlamini-Zuma was at all times acting in good faith when she reviewed, repealed and replaced regulations, including those brought forward by the organisation.

He added it would be “bad in law” for the court to give an order barring future extensions of the national state of disaster, as sought by the LFN.

Trengove said the minister could not be stripped of the power to promulgate further regulations.

“It is simply not competent for the court to do so and in any event there was no justification for it.”

Because the LFN is not a legal firm, it asked that, if it was successful in its application, that its expenses in bringing the application to be remunerated by the minister.

Trengove said: “The applicants have no legal costs. We submit, with respect that the conduct in bringing the minister before the court on a few days notice for her imprisonment is an abuse and for that reason the applicants should be ordered to pay the minister’s costs.”

Judgment was reserved with no fixed date set.

Parties would be notified and sent the judgment, Davis said.

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