lockdown

For Attention:
The Office of the President
The Honourable Cyril Ramaphosa
Via Email: presidentrsa@presidency.gov.za

The Spokesperson for the Presidency
Khusela Diko
khusela@presidency.gov.za

The Minister of Health
The Honourable Dr. Zweli Mkhize
minister@health.gov.za

15 May 2020

1. I refer to the above and confirm that we act for and on behalf of an association of legal practitioners known as “Lawyers for Constitutional Democracy.”

2. They comprise Attorneys Yusuf Ismail, Thembinkosi Luthuli, Advocates Christo Van Rensburg, Delia Turner and Professor George Devenish (emeritus) all cited in their personal capacity and coming together on a voluntary basis as concerned and legally informed citizens of the republic of South Africa.

3. The aforementioned would implicitly articulate the views of many South Africans, including various groups and individuals from all sectors of society, of varied race groups, from different religious and cultural backgrounds, many of whom are living in informal settlements.

4. Our urgent request is that President Cyril Ramaphosa immediately end the lockdown or at the very least reduce same to level 1 on a numbers of grounds, namely: LEGAL, MEDICAL, ECONOMIC and HUMANITARIAN reasons as expanded upon below, and for being constitutionally unjustifiable, and leading to an untold number of abuses and deaths caused by law enforcement officials.

5. We have also received information of factional disputes within government, evident more specifically in the recent relegation of the President to a secondary status by the Minister of Corporate Governance, Nkosazana-Dlamini Zuma, more specifically in the manner she has overridden the President in his decision making process, the classic example being the tobacco saga.

LEGAL REASONS

6. Citing a recent article by Vuyani Ngalwana S.C. (marked Annexure “A”) the following questions are raised:

6.1 Why was the present ‘pandemic’ dealt with via the Disaster Management Act, 2002 (the DMA) which seems generally reserved for national disasters having to do, not with pandemics, but with climate related and human-induced disasters?

6.2 What are the reasons as to why a declaration of a national state of disaster occurred (which has led to what appears to be a litany of violations of constitutional rights, both by ministerial regulation and by the conduct of law enforcement officials) while the DMA does contemplate dealing with a disaster without declaring a national state of disaster?

6.3 Was there ever any rational connection between some of Government’s regulations and law enforcement officials’ conduct, on the one hand, and the purpose of Government’s intervention as clearly stated in the DMA?

7. The National Executive of Government has powers, accountability and responsibilities conferred on it by Chapter 5 of the Constitution. It states:

7.1 The President has the obligation to “uphold, defend and respect the Constitution as the supreme law of the Republic” [s 83(1)(b)] and, among others, the power to make “any appointments that the Constitution or legislation requires the President to make, other than as head of the National Executive” [s 84(2)(e)];

7.2 The Deputy President’s job is to “assist the President in the execution of the functions of government” [s 91(5)];

7.3 Members of cabinet are accountable “collectively and individually to Parliament for the exercise of their powers and performance of the functions” assigned to them by the President [s 92(1) & (2)].

8. As a result of Covid-19 in South Africa, an authoritarian entity calling itself the “National Coronavirus Command Council” (hereinafter referred to as NCC), operating without any parliamentary oversight or constitutional mandate, has been appointed by the South African President to deal with the present pandemic.

9. This body is now engaged in decision-making and policy enactment, as well as determining the regulations and levels enacted. 

10. The Office of the President is requested to provide a rationale in explaining what constitutional power government policy can be delegated by the President to a body that de facto has absolutely no legitimate legislative or constitutional existence.

11. This would also by extension imply that any decision-making by a body with no legitimate constitutional existence is invalid and consequentially any regulations passed by same are null and void.

12. A decision that is taken by the President must be in writing if taken in terms of legislation or if it has legal consequences
[s 101(1)].

13. A written decision by the President must be counter-signed by another cabinet member if the decision concerns a function assigned to that of another cabinet member [s 101(2)].

14. At what stage, when and where were these requirements ever met in the appointment of the illegitimate NCC?

15. What piece of legislation, or constitutional provision, did the President cite as conferring upon him the power to appoint the NCC?

16. On 29 April 2020, South Africans were faced with more draconian and dictatorial regulations, without repealing anything before it. Regulation 2(3) of these regulations says in this regard:

Despite the repeal of the regulations referred to in subregulation (1), all directions issued in terms of those Regulations shall continue to apply unless varied, amended or withdrawn.

17. This is in direct contradiction with Section 27(5) of the Disaster Management Act which states that the National State of Disaster lapses 3 months after it has been declared, unless the designated Minister (COGTA and no other) either terminates the state of disaster or extends it before expiry of the 3 month period for one month at a time. There is no room in that section for the extension of the state of disaster by keeping in force directions and repealed regulations indefinitely at the discretion of any Minister. 

18. It is common cause that the regulations disrupt numerous constitutional rights, namely:

18.1 The right of citizens to move freely within their suburbs, gated communities or townships (s 21 of the Constitution);

18.2 The right to human dignity (s 10);

18.3 The right to life (s 11);

18.4 The right to freedom and security (s 12);

18.5 The right to freedom of religion, not even in limited numbers (s 15);

18.6 The right to freedom of expression, which is expressly criminalized by Regulation 11(5) where challenging the conventional view of the virus or even denying the existence of a virus can be criminalized in terms of the draconian Regulations (s 16) (It is impossible to overstate how dangerous it is to allow the government to determine what may be said and what may not, in any context);

18.7 The right to freedom of assembly, except for funerals of up to 50 mourners (s 17);

18.8 Political rights (s 19);

18.9 The right to freedom of trade, occupation and profession
(s 22);

18.10 The right to fair labour practices, like picketing (s 23);

18.11 The right of access to courts (s 34).

19. It is submitted that these limitations are neither reasonable nor justifiable within the framework of the Constitution.

20. Where a regulation limits one of the rights guaranteed in the Bill of Rights, the regulation will only be constitutionally valid if it is justifiable in terms of the Limitation clause. Many of the lockdown regulations do limit rights protected in the Bill of Rights.

21. The burden to justify the limitation lies with the Government, which must provide both factual material and policy considerations that might justify the limitation.

In Moise v Greater Germiston Transitional Local Council, the Constitutional Court explained this as follows:-

“The weighing up exercise is ultimately concerned with the proportional assessment of competing interests but, to the extent that justification rests on factual and/or policy considerations, the party contending for justification must put such material before the Court… If the government wishes to defend the particular enactment, it then has the opportunity – indeed an obligation – to do so. The obligation includes not only the submission of legal argument but the placing before the Court of the requisite factual material and policy considerations…[The] failure by Government to submit such data and argument may in appropriate cases tip the scales against it and result in the invalidation of the challenged enactment.”

22. It is clear, based on the above that a lot of the regulations make no sense whatsoever and are constitutionally unjustifiable.

23. The military-imposed curfew from 7pm each night to 5am the next morning does not seem to make any sense. This provision clearly limits the right to freedom of movement guaranteed in section 21 of the Bill of Rights in quite an extreme manner.

24. What is the factual basis for this regulation?

25. Has there been significant movement of people after 8pm during the lockdown so far?

26. Is there any factual basis that such movement increases the risk of infection?

27. The same logic applies to the restriction on exercise to between 6am and 9am. What is the actual purpose of this rule? Is it for convenient policing?

28. There does not seem to be a good reason to limit people’s right to freedom of movement, as mere convenience will never justify a radical limitation on a constitutional right.

29. Furthermore, there does not seem to be a factual basis for the assumption that more people will get infected if they exercise after 9am. Unlike other regulations that enforce physical distancing, there does not seem to be any relation between the limitation and the legitimate purpose of slowing down or suppressing the spread of Covid-19.

30. It is clear that the current enforcement of these draconian regulations (as we are not in a state of emergency), amounts to violation of our constitutional rights, and as such the regulations are in our estimation invalid. This means there is a duty on Government to justify the limitation of our rights in accordance with the limitation clause, which has also not been suspended. As yet, this has not been done. The current regulations are open to constitutional challenge and invalidation by all the citizens of South Africa and foreigners.

31. As this is a medical crisis, there was no need for the deployment of the military and the imposition of a police state, as Government has declared a State of Disaster, and not a State of Emergency.

32. Since the Constitution has not been suspended, it is our submission that citizens are not contravening any regulations by exercising their right to freedom of movement, and to work, and any of their other rights.

THE MEDICAL ASPECT

33. It is submitted that section 27(1) of the DMA says a national state of disaster may be declared if:

33.1 existing legislation or other contingency arrangements do not cater adequately for dealing with the disaster effectively, or  

33.2 there are special circumstances that warrant the declaration of a national state of disaster.

34. It is submitted that at present we do not need the Disaster Management Act to be implemented as there is other existing legislation in place. Presently we have International Health Regulations Act, 28 of 1974 (the IHRA) which includes a list of 32 other ailments.

35. The IHRA Supplementary Regulations, in broad terms, prescribe the following interventions: 

35.1 Health measures applicable between ports and/or airports of departure and arrival.

35.2 Measures concerning the international transport of cargo, goods, baggage and mail.

35.3 Special provisions relating to each of the primary 4 infectious diseases.

35.4 Special provisions relating to each of the 32 representative infectious diseases involving potential health risks for travellers.

36. None of these interventions allow for the suspension of constitutional rights that is currently the feature of some of the regulations promulgated under the DMA in South Africa.

37. The Supplementary Regulations in the IHRA lists 32 other infectious diseases about which the following is said:

“Depending on the travel destination, travellers may be exposed to a number of infectious diseases; exposure depends on the presence of infectious agents in the area to be visited. The risk of becoming infected will vary according to the purpose of the trip and the itinerary within the area, the standards of accommodation, hygiene and sanitation, as well as the behaviour of the traveller. In some instances, disease can be prevented by vaccination, but there are some infectious diseases, including some of the most important and most dangerous, for which no vaccines exist.”

38. It is abundantly evident that the present ‘pandemic’ could have been more than adequately addressed by the IHRA

MEDICAL & EXPERT OPINION ON COVID 19

39. According to data from the best-studied countries and regions, the lethality of Covid19 is on average 0.2%, which is in the range of a severe (flu) and about twenty times lower than originally assumed by the WHO. (See Annexure B)

40. The risk of death for the general population of school and working age is typically in the range of commuting to work. The risk was initially overestimated because many people with only mild or no symptoms were not taken into account. (See Annexure B)

41. Up to 80% of all test-positive persons remain asymptomatic. Even among 70-79 year olds, 60% remain asymptomatic. Over 95% of all persons show very mild symptoms at most. (See Annexure C)

42. Up to one third of all persons already have a certain background immunity to Covid-19 due to contact with previous coronaviruses (i.e. common cold viruses). (See Annexure D & E)

43. The median or average age of the deceased in most countries is over 80 years and only 1% of the deceased had no serious preconditions. The age and risk profile of deaths thus essentially corresponds to normal mortality. (See Annexure F)

44. Up to 50% of all additional deaths may have not been caused by COVID-19, but by the effects of the lockdown and fear. For example, the treatment of heart attacks and strokes decreased by up to 60% because many patients no longer dared to go to hospital.

45. Even in so-called “Covid-19 deaths”, it is often unclear whether they died from or with coronavirus (i.e. from underlying diseases) or if they were counted as “presumed cases” and not tested at all. However, official figures usually do not reflect this distinction. (See Annexure H)

46. Many media reports of young and healthy people dying from Covid-19 turned out to be false: many of these young people either did not die from Covid-19, they had already been seriously ill (e.g. from undiagnosed leukaemia). (See Annexure I)

47. The often shown exponential curves of “corona cases” are misleading, as the number of tests also increased exponentially. In most countries, the ratio of positive tests to tests overall (i.e. the positive rate) remained constant at 5% to 25% or increased only slightly. In many countries, the peak of the spread was already reached well before the lockdown. (See Annexure J)

48. Countries without curfews and contact bans, such as Japan, South Korea or Sweden, have not experienced a more negative course of events than other countries. Taiwan has reduced the rate of infection to virtually zero despite having no lockdown.

49. Contrary to original assumptions, various studies have shown that there is no evidence of the virus spreading through aerosols (i.e. particles floating in the air) or through smear infections (e.g. on door handles, smartphones or at the hairdresser).

50. There is also no scientific evidence for the effectiveness of face masks in healthy or asymptomatic individuals. On the contrary, experts warn that such masks interfere with normal breathing and may become “germ carriers”. Leading doctors called them a “media hype” and “ridiculous”. (See Annexure “K”)

51. Several media outlets were caught trying to dramatize the situation in hospitals, sometimes even with manipulative images and videos. In general, the unprofessional reporting of many media outlets maximized fear and panic in the population.

52. The virus test kits used internationally are considered by many experts as being prone to error and can produce false positive and false negative results. Moreover, the official virus test has not been validated. (See Annexure “L”)

52.1 A new overview of existing PCR and antibody studies shows that the median value of Covid-19 lethality (IFR) is about 0.2% and thus in the range of a strong influenza. (See Annexure B)

52.2 A new antibody study with Danish blood donors showed a very low Covid-19 lethality (IFR) of 0.08% for persons under 70 years of age. (See Annexure C)

52.3 A new antibody study from Iran, one of the earliest and most affected countries by Covid-19, also showed a very low lethality of 0.08% to 0.12%. (See Annexure D)

52.4 A new antibody study from Japan comes to the conclusion that about 400 to 800 times more people there had contact with the new coronavirus than previously thought, but showed no or hardly any symptoms. Japan had done rather few tests so far. 

52.5 A new study from Germany, with the participation of leading virologist Christian Drosten, shows that about one third of the population already has some cellular immunity to the Covid-19 corona virus, presumably through contact with earlier corona viruses (cold viruses). This cellular immunity by so-called T-cells is significantly higher than PCR and antibody tests suggested and may partly explain why many people develop no symptoms with the new coronavirus.

52.6 Numerous media outlets reported about alleged “re-infections” of already recovered persons in South Korea. However, researchers have now come to the conclusion that all of the 290 suspected cases were false-positive test results caused by “non-infectious virus fragments”. The result again highlights the well-known unreliability of PCR virus tests. (see annexure N)

OPINIONS OF MEDICAL EXPERTS AND EPIDEMIOLOGISTS

53. We further draw your attention to the opinion of medical experts and epidemiologists which can be made available: Stanford Professor John Ioannidis explains that Covid-19 is a “widespread and mild disease” comparable to influenza (flu) for the general population, while patients in nursing homes and hospitals should receive extra protection.

54. Stanford Professor Scott Atlas explains that “the idea of having to stop Covid-19 has created a catastrophic health care situation”. Professor Atlas says that the disease is “generally mild” and that irrational fears had been created. He adds that there is “absolutely no reason” for extensive testing in the general population, which is only necessary in hospitals and nursing homes.

55. Epidemiologist Dr Knut Wittkowski explains that the danger of Covid-19 is comparable to an influenza and that the peak was already passed in most countries before the lockdown. The lockdown of entire societies was a “catastrophic decision” without benefits but causing enormous damage. The most important measure is the protection of nursing homes. According to Dr. Wittkowski, Bill Gates’ statements on Covid-19 are “absurd” and “have nothing to do with reality”. Dr Wittkowski considers a vaccination against Covid-19 “not necessary” and the influential Covid-19 model of British epidemiologist Neil Ferguson a “complete failure”.

56. German virologist Hendrik Streeck explains the final results of his pioneering antibody study. Professor Streeck found a Covid-19 lethality of 0.36%, but explains that this is an upper limit and the lethality is probably in the range of 0.24 to 0.26% or even below. The average age of test-positive deceased was approximately 81 years.

57. Biology professor and Nobel Prize winner Michael Levitt, who has been analyzing the spread of Covid-19 since February, describes the general lockdown as a “huge mistake” and calls for more targeted measures, especially to protect risk groups.

58. The emeritus microbiology Professor Sucharit Bhakdi explains that politics and the media have been conducting an “intolerable fear-mongering” and an “irresponsible disinformation campaign”. According to Professor Bhakdi, face masks for the general population are not needed and may in fact be harmful “germ catchers”. The current crisis was brought about by the politicians themselves and has little to do with the virus, he argues, while a vaccine against coronavirus is “unnecessary and dangerous”, as was already the case with swine flu. The WHO has “never taken responsibility for its many wrong decisions over the years”, Professor Bhakdi adds. (See Annexure A for his letter to the German Chancellor)

59. The Swiss chief physician for infectiology, Dr Pietro Vernazza, explains that the Covid-19 disease is “mild for the vast majority of people”. The “counting of infected people and the call for more tests” would not help much. In addition, most of the people listed in the corona statistics did not die solely from Covid-19. According to Dr Vernazza, there is no evidence for the benefit of face masks in people who do not show symptoms themselves. Nevertheless, we are prepared to concede, to the voluntary wearing of masks in public, social distancing together with mass sanitization projects with government particularly in the workplace and on public transport, as well as frequent washing of hands by all and strong hygienic practices.

60. According to recent medical findings, healthy people should not be in lockdown. A petition of 19 South African doctors was sent to the President’s office to call off lockdown, in its entirety, and yet Government persists in enforcing this draconian and unreasonable lockdown, despite the medical profession calling for lockdown to cease.

61. It seems lockdown is now a deliberate political act, bent on destroying lives and the economy, and is not in place for the safety of South African citizens, but is only in place to cause pain and destruction. 

ECONOMIC AND HUMANITARIAN REASONS

62. As South Africa is an emerging and fragile economy, with approximately 10 million tax payers, and 60 million people, the Government is hopelessly unable to take care of all South Africans by providing them with a living income during lockdown. 

63. Despite the situation, last month the KZN Department of Social Development procured 48 000 blankets to the value of R22 million for the homeless. The inflated prices clearly indicated corrupt activity during a ‘pandemic’.

64. Last month South Africa flouted its own lockdown regulation rules by selling planeloads of military equipment to Turkey. This has been confirmed by Turkish ambassador Elif Ülgen, and that the cargo was military ammunition bought from Rheinmetall Denel Munition (RDM).

65. According to economists, lockdown is costing South Africa about 10 billion rands a day, and as the lockdown has been going on for more than 45 days (instead of the original 21 days), that means our economy has already lost about 45 billion rands and has resulted in the loss of millions of jobs and businesses. Many people have not had food for days (and even weeks) at a time.

66. The relief Government has promised is not forthcoming. It is clear that Government is under-equipped to feed the nation, and therefore the right to work must take priority over further and continued lockdown (which is in any event not happening in informal settlements, or townships as it is logistically impossible). The only way our people can survive is to work.

67. The ongoing suffering, caused by the imposition of the illegal and draconian lockdown regulations in South Africa, is causing a humanitarian crisis.

68. IN CONCLUSION, AS THE ENTIRE LOCKDOWN PROCESS AND ALL REGULATIONS PERTAINING THERETO, ARE FUNDAMENTALLY FLAWED AND THEREFORE ILLEGAL, ALL SOUTH AFRICANS HAVE THE RIGHT TO EXERCISE THEIR CONSTITUTIONAL RIGHTS WITHOUT LIMITATION.

69. WE REQUEST AN URGENT REPLY TO THIS LETTER WITHIN A PERIOD OF 5 DAYS OF RECEIPT, FAILING WHICH WE WILL BE SEEKING THE NECESSARY RELIEF IN DISSOLVING THE NATIONAL CORONAVIRUS COUNCIL ON THE GROUNDS OF IT BEING TOTALLY UNCONSTITUTIONAL AND ITS REGULATIONS CONSEQUENTIALLY INVALID.


Lawyers for Constitutional Democracy

1 COMMENT

LEAVE A REPLY

Please enter your comment!
Please enter your name here

four × 4 =