DA fumes as Sihle Zikalala 'gets away' with 'flouting' lockdown rules
'The rest of the citizenry are arrested for wearing slip-slops, buying cooked chickens or stepping on a patch of sand' — Dianne Kohler Barnard
KwaZulu-Natal premier Sihle Zikalala will not face criminal charges for holding a gathering at Clairwood Hospital during level 5 lockdown in April last year.
In a document dated December 28 2020, the director of public prosecutions in KwaZulu-Natal, advocate Elaine Zungu, said she declined to prosecute any person in connection with the matter.
“I attach hereto a legal opinion provided by advocate [Sandesh] Sankar of my staff which serves as the reasons for my decision,” she said.
The criminal charge, laid by DA shadow minister of state security Dianne Kohler Barnard, alleged that Zikalala contravened the Disaster Management Act and national lockdown regulations at the hospital on Freedom Day.
“The premier contravened lockdown regulations on April 27 2020 by holding a gathering at Clairwood Hospital, where he pulled personnel from their duties to listen to his speech.”
At the time, Zikalala’s office said he was at the hospital doing routine government work. However, the DA was not convinced and laid a charge on the same day.
“This does not explain the stage and sound equipment rented for him to make a speech, nor the need to pull personnel from their highly important work to gather under the hot sun to hear him speak,” Kohler Barnard said.
She said the gathering was in direct contravention of the Disaster Management Act in that “every gathering, as defined in regulation 1, is hereby prohibited, except for a funeral as provided for in sub-regulation (8)”.
In his legal opinion, Sankar said it was common cause that on April 27 2020 a contingent of members of the provincial legislature and other dignitaries converged at the Clairwood Hospital.
“The event was the brainchild of the communication unit of the provincial government and was endorsed by the full sitting of the provincial command council on Covid-19,” he said.
The event lasted about 28 minutes and Zikalala took centre stage for about 15 minutes.
“He addressed front-line workers and personal protective equipment (PPE) was distributed. A media contingent was present. One photo reveals social distancing was practised (although two men in the photo are seemingly less than 1.5m apart) and masks were worn,” Sankar said.
Sankar said the lockdown regulations, in his view, were to restrict movement of the general public with the specific intent to reduce the Covid-19 infection rate at each alert level.
“The intention cannot have been and was never to prevent essential services from continuing, which includes services rendered by members of the provincial legislature as being essential services.
“The visit to the hospital by the premier and MECs was to deliver PPE to front-line workers at Clairwood Hospital, and to deliver much-needed (at the time) motivation and guidance to front-line workers. This, in my opinion, does not constitute a gathering within the definition. Even if my view is incorrect, the bulk of those present at the hospital were essential services personnel.”
He said in terms of the Disaster Management Act, an enforcement officer must order that a gathering disperse immediately or take immediate action, such as arrest those who refuse to disperse.
“It is abundantly clear to me that the legislature did not intend to criminalise the unlawful attendance at gatherings, save in exceptional circumstances. In essence, therefore, had the police been alerted to this ‘gathering’ when it happened, there would have been no criminal prosecution, unless those persons ‘gathering’ chose to defy the police.
“To instruct a prosecution would be, in my opinion, highly improper,” Sankar said.
Kohler Barnard learnt of the decision on Tuesday afternoon when TimesLIVE approached her for comment.
She said seven months after she laid the charge, she wrote to national director of public prosecutions advocate Shamila Batoyi asking why there had been no progress in this matter.
“According to the investigating officer, Brig Mngcwabe, who I was in contact with weekly, the National Prosecuting Authority (NPA) kept promising a decision, yet not a peep had been forthcoming.
“While ordinary South Africans, those without ANC connections, were persecuted without rationality or mercy, we were left asking whether or not the delay in relation to this case against the premier showed the NPA actually prosecutes without fear or favour.
“We have to ask whether or not there is a different set of laws for the powerful and powerfully connected, and another set for the rest of us.
“All men, it appears, are not equal before the law in SA. Men like Zikalala will get away with holding potential superspreader illegal events, at a hospital no less, while citizens were arrested for legally buying groceries.
“To hear today that the matter was quietly slipped under the carpet two months ago, on December 28, without so much as a response to my letter, tells me that yes, men like Zikalala get away with flouting the law, while the rest of the citizenry are arrested for wearing slip-slops, buying cooked chickens or stepping on a patch of sand.”