The Hola Bon Renaissance Foundation has launched an application to the Constitutional Court, the highest judicial forum in South Africa. It is asking for direct access to the court so that it may argue that the current lockdown is unconstitutional and unlawful. The HBRF claims that there is no emergency situation in SA and that COVID-19 is a ‘self-healing disease for Africans’.
Read founding affidavit: HBR Foundation vs President of Republic Of SA ConCourt.pdf
The Hola Bon Renaissance Foundation may be obscure, boasting an ageing FB site with not a single posting, for example, but it is no stranger to the Constitutional Court. Nor is this the first time it has asked for direct access to that court to present a bizarre legal argument.
Normally cases heard by the Constitutional Court will already have been considered by several other courts as the matter made its way through the system of appeals. But there is a provision that the highest court may, at its discretion and in the interests of justice, allow a matter to go straight to that court – although it is rare for the judges to agree to allow this.
In 2011 the foundation brought an application for direct access to argue the question of whether Soweto should become a local municipality, among others. The court was adamant that it would not hear the matter by way of direct access, and dismissed the case.
This time, however, the foundation is tackling a much bigger issue. It claims its case should be heard by the constitutional court because it wants a declaration that the present state of disaster is unconstitutional and in ‘gross violation’ of SA’s supreme law.
This is not because the foundation has a problem with any particular regulation or aspect, but rather because the foundation claims there is no reason to have a state of disaster in the first place. All the financial and other measures taken to deal with the coronavirus and those infected are wasteful and unnecessary, says the foundation’s ‘representative’. (The papers say that the application is brought by the foundation’s chairperson, without naming this person. However, the foundation’s website lists the chairperson as Bontshitswe Mothopeng.)
In the affidavit on which the application is based, the ‘representative’ as he is described in various places in the papers, claims that COVID-19 is a ‘self-healing disease for Africans’. As a result, he says, the court should declare that ‘the life of the nation is under no threat’ and revoke the state of disaster declared by President Cyril Ramaphosa last week.
The foundation requests the court to declare ‘that the disease referred to as Covic 19 known as Corana Virus possess no serious threat to the country and its people’. The new virus ‘has not proved to be deadly more than known viruses/disease such malaria, TB, HIV/AIDS’.
This is how the foundation explains its position: The origins and causes of COVID-19 are still unknown, but the people in the country where it began ‘were reported to be recovered’. This meant that SA would also be ‘able to manage it’.
SA has not reported any deaths, the foundation says, which indicates ‘that there is no disaster’. Other diseases that were being dealt with in SA led to far more deaths and critically ill patients than in the case of COVID-19.
‘War on queues’
Despite this, the president had escalated measures to combat the virus and had implemented a lockdown. This led to ‘a war on queues’, something that infringed the rights of all those South Africans ‘who are still in the second economy and are faced with digital divide’.
The state was clearly not ready for a lockdown, as evidenced by the fact that the department of home affairs had identified a glitch in the technology used to process applications for ID cards and passports. In the previous fortnight there had been interruptions in the delivery of two services – another indication that the state would not be able to manage a lockdown, said the foundation.
The new state of disaster would lead to a ‘permanent recession’, it claimed.
It was of the view that the president and the cabinet were ‘being misled’ on the question of the impact of the virus, and as a result the measures being taken were harmful and infringed the constitution.
The foundation said it believed that the virus cannot be harmful to Africans due to evidence from various sources: a student from Cameroon had recovered, a report from a Chinese doctor explained why ‘Africans’ skin resisted coronavirus’ and another doctor had said ‘the fuss’ was ‘irritating’.
The death rate and the infection rate in SA indicated that the virus was not harmful to South Africans, but the behaviour of the authorities had ‘created panic and unfair treatments against patients suffering from other diseases’. The foundation also noted the existence of a journal article that questioned why ‘so few’ cases of the disease had been reported in Africa. There had also been South Africans staying in China when the virus was at its worst, and no South African was infected.
The foundation said it believed that SA had long been preparing for something like this new virus, through its experience with a range of other illnesses.
The court has not yet responded to the filing of the application.
Given the wild claims and pseudo-science contained in the application, however, the judges will no doubt be seriously considering how best to respond.
Should it act as in the 2011 case, deal with the matter promptly, refuse the relief sought in the application and then deliver a judgment that knocks the whole thing on the head? Or should it ignore the application for as long as possible – something that would not be difficult given the conditions under which courts are operating at the moment?
Incidentally, it is not just strange legal action that the foundation gets involved in: during May 2013, it wrote a bizarre letter to the Gupta family that it put on its website, apologising to the Gupta family and their guests who had attended a wedding of a member of that family – though exactly why the apology is needed isn’t made clear. The letter says the foundation believes that ‘marriage is a gift’ that ‘embraces moral regeneration’. In addition, the foundation thanks the Guptas for choosing SA as the wedding venue.
‘The Gupta family’s investments in SA are highly appreciated as your work and foreign direct investment has had a positive impact on the lives of many. We sure hope that the Gupta family and your guests are not heavy-hearted because of what happened during your stay in the country and their departure; also hope the family accept our apology in good faith. We anticipate that our relations will continue to flourish in SA and the world, because we today regard your family as part of our African family.’