DEAR SA’s Legal Action and PANDA’s participation postponed

PANDA joins State of Disaster court action as friend of the court. Minister of Health has applied to intervene and oppose the matter.


Release: Immediate INTERNATIONAL | 1 December 2020

Dear SA vs minister of cooperative governance and traditional affairs


  1. On 14 November 2020, the Minister of Cooperative Governance and Traditional Affairs (“COGTA Minister“) extended the nationwide state of disaster that had been declared in South Africa for a further 30 days. DearSA, a civil rights association had advised the COGTA Minister in October that if the state of disaster was extended in November, they would bring legal action declaring its extension irrational. This they did on 16 November in their Founding Affidavit.
  2. On 23 November 2020, PANDA applied to be admitted in the litigation as a friend of the court. A friend of the court (amicus curiae) is a person or group who is not a party to an action, but has a strong interest in the matter and petitions the court with the intent of influencing the court’s decision. As such, PANDA presented the latest developments in the science relating to COVID-19 in the form of an affidavit that posed three questions:
    • How dangerous is COVID-19?
    • How accurate are COVID-19 tests?
    • What is the cost of lockdown?
  3. In essence, the science set out in our Founding Affidavit shows that:
    • COVID-19 is far less dangerous than originally thought. A high percentage of the population is not susceptible. The risks that COVID-19 poses to children are negligible and for the bulk of the population, the risks are in line with other respiratory viruses. Our healthcare system coped with the initial Outbreak and there is no reason to believe that our system will not also be able to cope with further flare-ups. The reality is that COVID-19 has become one of the endemic viruses, like other coronaviruses, that will raise its head from time to time.
    • The tests that are currently being used to determine COVID-19 cases are not fit for the purpose for which they are being used. Test results neither indicate that a person is sick with the disease nor that they are contagious. In countries with a low actual prevalence of the virus, the tests are massively overstating true, clinical cases and increases in the number of tests being done exacerbate the problem.
    • Lockdowns have systematically failed to manifest beneficial impact on epidemic curves yet they have economic, medical and educational consequences that translate into shortening of lives. It is beyond doubt that this will far exceed the loss of life caused by COVID-19 both at home and abroad.
  4. The Minister of Health has applied to intervene and oppose the matter. He argues that the Ministry of Health needs to consult with various parties and consider the ramifications. He also contends that the time periods for the filing of affidavits (1 December) are “unreasonable in the extreme.
  5. We understand that the Minister of Health’s intervention has resulted in DearSA having taken a decision to postpone the matter for the reasons set out here.
  6. PANDA is disappointed with this outcome but as a friend of the court, we cannot alter the course of the litigation. We are disappointed because:
    • Lockdowns destroy lives and livelihoods and the longer the state of disaster is maintained, the more South Africans will suffer. Every day of lockdown causes suffering and death.
    • The decision that is under review is the decision that was taken by the COGTA Minister on 14 November. This case was not about the current situation and requires no additional consultation or consideration. It is simply a question of whether or not, given the data the COGTA Minister had on 14 November, her decision to extend the lockdown was rational. The COGTA Minister’s role is to coordinate government and she would have failed in her primary task had she not consulted with the Minister of Health prior to 14 November. There was therefore no need for the Minister of Health to intervene in this case.
    • The state of disaster can only be extended for 30 days at a time. The Minister of Health’s complaints in relation to urgency must be seen in that context. It should also be seen in the context of his statement on 26 November that government would discuss additional lockdown restrictions, based on evidence and that his department will make recommendations to the National Coronavirus Command Council in the coming days. The Minister of Health is evidently able to increase the stringency of lockdown within a few days, but needs week to be able to defend such decision.
    • The South African government’s data in relation to COVID-19 is a mess. Hospitals have been added to the reporting, deaths that occurred at unknown dates in the past are being added to the totals retrospectively and spikes in the data are being caused by bulk adjustments for which no explanation is given. Even if the data were accurate, the increases being reported in the Eastern Cape and the Western Cape are to be expected from a virus that has become endemic and are not cause for concern.
  7. South Africa has employed one of the harshest and longest lockdowns in the world. Without attributing any excess deaths to Coronavirus, South Africa has one of the worst, if not the worst, age-based mortality rates in the world. We have hospitals in South Africa that were not overburdened with numbers of COVID-19 patients but where government incompetence resulted in more than half of the patients admitted with COVID-19 dying – a rate that is worse than anywhere else in the world that PANDA is aware of. What this means is that the lockdown measures that have been extended over and over again have done nothing to flatten the curve in South Africa. The lockdown has served only to cause more death and misery. It is often said that insanity is doing the same thing over and over again but expecting different results. Certainly, we consider it manifestly irrational to extend the state of disaster over and over again expecting it to have an impact on the virus and not cause lives and livelihoods to be destroyed.

Publisher’s note: The opinions and findings expressed in articles, reports and interviews on this website are not necessarily the opinions of PANDA, its directors or associates.

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