Opinionista Professor Balthazar 5 May 2020

Is it truly necessary?

We all need to pay attention to the key word in the section of the Disaster Management Act which empowers regulations to be promulgated: ‘necessary’. It is difficult to justify many of the government’s decisions as being necessary for the mitigation of the disaster currently threatening South Africa’s existence.

Anyone living in South Africa at present would be forgiven for thinking that they are part of a strange, dysfunctional family. Father Cyril is thoughtful, reasoned and emphatic. The contrast between him and his American counterpart, Donald, could not be more stark, given his almost nightly displays of rampant egotism, narcissism, disingenuousness and plain stupidity. But then the family has a number of uncles and aunts, who although they exhibit nowhere near the gross behaviour of Trump, still treat the rest of the family in an arbitrary and inconsistent fashion. So who do we follow: the father, or the uncles and aunts?

The sharp point is that the country is receiving mixed messages. The president informs the nation that cigarettes can be sold and a few days later Minister Nkosazana Dlamini Zuma lays down the law – no cigarettes may be sold. The president commends South Africans for their sacrifices and then Minister Bheki Cele warns the country that if some of us misbehave we will all find ourselves back at Level 5.

This latter comment is particularly instructive. The Disaster Management Act provides the government with clearly circumscribed powers. Section 27(3) of the Disaster Management Act circumscribes the powers that the minister possesses to make regulations as set out in s27(2) as follows:

“The powers referred to in subsection (2) may be exercised only to the extent that this is necessary for the purpose of: (a) assisting and protecting the public; (b) providing relief to the public; (c) protecting property; (d) preventing or combating disruption: or (e) dealing with the destructive and other effects of the disaster.” 

The act does not give the minister a blank cheque to run the country; it only allows the minister to make regulations that are necessary for the mitigation/curbing of the disaster.

For Minister Cele to treat the public as errant schoolchildren – if one of you misbehaves, none of you can play outside – is behaviour that is way beyond the scope of the act. Indeed, it has no place in a constitutional democracy. To be sure, in an authoritarian state, or sadly the USA of President Trump, collective punishment is employed. But in a constitutional democracy, such threats should have no place.

If A and B breach the regulations, then charge them. But you cannot threaten the whole country with collective punishment simply because your regulations are catastrophically drafted, or the police are more interested in repression in the townships then acting as guardians of a constitutional state. Perhaps Minister Cele might read the judgment of the Constitutional Court in SATAWU v Garvis (2019) which found that if a person takes part in a protest peacefully, she does not attract liability for the unlawful acts done by others during the protest. A constitutional democracy acts against the few who breach a law, and not the millions of law-abiding people.

This column has acknowledged previously that the Covid-19 pandemic confronts governments across the globe with unprecedented challenges. And there are unreasonable critics. Judging from press reports, there appear to be certain legal challenges against the present policy that do border on the absurd. Beware the lawyers who think that the reading of one or two articles written by medical opportunists converts them immediately into epidemiologists or virologists.

But some challenges clearly have merit. Take the alcohol ban. It can be argued that widespread use of alcohol causes violent behaviour and thus can crowd hospitals that are needed to deal with Covid-19 patients. Courts will, in all likelihood, defer to a coherent evidence which the government can produce as justification for a policy in that the judges will be well aware that policy-laden decisions are best left to the executive. But, in keeping with the doctrine of proportionality, courts should ask whether a less drastic policy would be more congruent with the limited powers granted to the executive under the Disaster Management Act.

Hence, the question arises as to why liquor outlets cannot sell a restricted quantity of alcohol per day or perhaps only for a couple of hours on, say, two days a week. It may not be a perfect solution, but residents are entitled to exercise basic rights including the right to a drink.

A ban on cigarette purchases is an even more problematic issue. The recent statement by the president about the reversal of his announcement regarding the sale of cigarettes is troubling. Why, for example, did the science suddenly provide a different answer to the one that motivated his decision in the first place? Who were the 2,000 objectors to cigarette sales whose representations appeared to be so decisive? It makes a huge difference if the 2,000 included virologists, public health specialists and the medical profession in general as opposed to Mr and Mrs Citizen in that many more Mr and Mrs Citizens doubtless argued in favour of relaxation of the ban.

There are other problems with the cigarette ban –  it is a notorious fact that there is a large illegal trade in cigarettes. By banning the sale of cigarettes through legal channels, the smugglers have had a huge boost in trade which serves to promote, yet again, a parallel illegal economy, that is apart from the loss of R1.5-billion in tax revenue. To return to the key word in the section of the Disaster Management Act which empowers regulations to be promulgated: “necessary”. It is difficult to justify this ban as being necessary for the mitigation of the disaster.

And we still have not dealt with the three-hour exercise period, the confined time of which acts as a vector for transmission of the virus, or the nightly curfew – far more in keeping with a State of Emergency than a State of Disaster. Of course, if it was the former, then mandatory parliamentary oversight would kick in as opposed to the Stalinist-sounding National Command Council, which now operates outside of parliamentary oversight.

To repeat – the government has a difficult task in dealing with this unprecedented crisis and in many ways has done exceedingly well, in particular when the president has been in the vanguard. But many of the uncles and aunts seem to have a paper-thin commitment to the strictures of constitutional democracy and the idea that those who live in the country enjoy preciously earned rights that can only be limited when necessary to mitigate the disaster.

To add to public anxiety is the uncomfortable fact that many of those who are on the Command Council were hardly tenacious defenders of constitutional restraint over the decade of Zuma rule. There is a whiff of danger to our constitutional scheme in the air. Civil society will have to be very vigilant. Or else. DM

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