Dr Nkosazana-Dlamini Zuma has failed to comply with the court order to hand over the complete records of her state of disaster decisions to Sakeliga.
On 9 November 2022, the High Court ordered Dlamini-Zuma to comply by 22 December 2022 with the information request that Sakeliga submitted to her in December 2020. The request for information included a request for all records on which she relied when she declared the national state of disaster in March 2020, for each time that she extended it, and for each of the regulations that she published during that time.
In a letter from Sakeliga’s attorneys to Dlamini-Zuma on 23 December 2022, we point out to her that she did not comply with the court order and that we deem her to be in contempt of court. We caution her that if, by 6 January 2023, we have still not received from her the complete record, we will approach the court with an application to hold her in contempt of court. A person held to be in contempt of court faces sentencing to jail.
Incomplete and inapplicable records
Although the court order is clear that Dlamini-Zuma should comply with Sakeliga’s complete information request, by 22 December 2022 her legal team had provided to Sakeliga an index listing 41 records, with apparently only some of the records in the index actually delivered. However, neither the index nor the records delivered satisfy Sakeliga’s information request and the court order.
Here follows an excerpt from our attorney’s letter:
“We have gleaned the index and the records you have already uploaded. Even though your client has yet to upload all of the records included in your index, it is already clear to our client that your client does not intend to provide complete discovery as required by our client’s original information request of 15 December 2020 and the subsequent court order of 9 November 2022.
“Your record consists mainly of already public policy documents and reports. Let’s compare the record index to the records which your client disclosed in response to various challenges to her 2020 and 2021 lockdown regulations over the last two years (with specific reference to the bans imposed on alcohol, tobacco, travel and trade). One gets the impression that the COGTA Minister (or your offices for that fact) has merely collected already prepared records from her litigation files to give lip service to the 9 November 2022 court order.
“The 9 November 2022 court order requires full compliance with our client’s information request. Your client is fully aware of the scope of that request, having not only unlawfully rejected the request during the internal appeal but also opposed and frustrated our client’s litigation in the High Court for approximately 18 months. There should be no uncertainty from your client’s side about the veracity and scope of disclosure required by the court order.
“In terms of the 9 November 2022 court order your client must disclose all records, reasons, reports, findings, deliberations, communications, memoranda and documentation relied upon by the COGTA Minister during the making of her lockdown regulations in 2020. The information request is also particular about the delivery of all records considered during the creation of each version of her augmented lockdown regulations during 2020.
“The COGTA Minister’s response to the order is clearly unacceptable. Must our client accept that the last two years of opposition to our client’s information request was undertaken by the COGTA Minister merely to frustrate and oppose our client’s access to records consisting primarily of already public reports, research papers and policies? Where is the interdepartmental correspondence relating to the management of COVID-19? Where are the meeting minutes? Where are the reports on public consultation, inter-departmental meetings, consultations with experts and industry, and the preparation of disaster management regulations? Where are the advisory reports on the framing of the regulations? Must we accept that each amendment to her lockdown regulations between March 2020 and December 2020 relied on the same 41 records you have chosen to discover now?
“We have considered the COGTA Minister’s original refusal to our client’s information request, and it is clear that she understood the scope and implication of our client’s information request when refusing access in 2021. We can, therefore, come to no other conclusion than that the COGTA Minister is wilfully continuing her strategy of frustrating our client’s right to access the full record of her 2020 regulation-making attempt.
“Our client deems the COGTA Minister to be in contempt of the 9 November 2022 order.
“We demand that the COGTA Minister comply with the 9 November 2022 order and that a complete record of all records falling within the ambit of our information request be delivered to our offices by no later than 6 January 2023. Failing full compliance, our client will proceed with an application to hold the COGTA Minister in contempt of court.”