To the delighted relief of the entire Cape Wine industry, our government has seen sense and clarified the rules to allow the transportation to, and export of, wine and “any other fresh produce products” through SA’s ports and airports.
It boggles the mind that there was any confusion about wine and other types of alcohol after the ban was lifted on the movement and export of “non-essentials”, though many of us would have branded booze an essential from Day 1 of the lockdown restrictions.
As a result of this clarification, a vital export lifeline is there, which will bring much relief to an industry which has seen its domestic sales banned by a state which many believe has taken the exercise of its authority far too far.
Said wine industry group Vinpro:
The South African wine industry is truly grateful to Government and all the respective role-players for showing an understanding for the industry’s challenges through this concession, as nearly half of South Africa’s wine production is exported and a restriction on exports would have a severe effect on wine-related businesses, but most importantly the livelihood of close to 300 000 people employed by the wine industry value-chain.
The latest decision by Government follows on an earlier concession for the wine industry to complete harvesting and processing activities to prevent wastage during the 21 day lockdown.
Surely the double standards cannot persist? If wine and other booze are good enough to sell to foreigners, they are good enough to consume here at home, and should once again be freely sold.
Should the lockdown not be lifted at the end of next week, a move which would be sensible from a public health perspective, many of us will continue to be spending almost all of our time stuck in our homes.
I am not advocating excess, but a few drinks at the end of a long day can enhance the pleasure and soothe the troubled soul. To prevent this by stopping purchases, as has happened since the lockdown began, is going a step too far.
So come on, Cyril. It’s time for common sense.
Or if you really believe a booze ban is justified and defensible, then publicly pour away the contents of the Presidential wine cellar and all other stocks of booze in the homes and offices of state employees.
No? I thought not.
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On Monday, South Africa’s Constitutional Court declined to hear an application from a group styling themselves the Hola Bon Renaissance Foundation, in which the group sought to challenge the constitutionality of the state’s recently gazetted shutdown regulations. The application was badly drafted, to say the least: It was as if one of the Public Protector’s lawyers had prepared the papers while high on at least two caps of acid. But some of the regulations may be unlawful and invalid, either because the legislation may not authorise the restrictions or because they unfairly discriminate on the basis of race.
Day 5 of the lockdown. Reports streaming in of members of the South African Police Service (SAPS) (some of them in civilian clothes and covering their faces with balaclavas) and the South African National Defence Force (SANDF), terrorising people by administering humiliating physical “punishments”, and by assaulting and, in at least three cases, allegedly murdering members of the public they accused of not obeying lockdown regulations.
Hopefully, these are “isolated incidents” of abuse, but what is worrying is that large numbers of South Africans on social media seem to support the unlawful and humiliating physical punishments and assaults meted out by SAPS and SANDF members.
As few people would support the members of the SAPS whipping, say, Markus Jooste, Ace Magashule or Dudu Myeni, to punish them for their alleged involvement in corruption, I am going to assume support for the unlawful action taken against mostly working-class and poor people is largely based on class prejudice and on the mistaken and misguided belief that people who allegedly disobey any of the lockdown rules forfeit all their rights.
It goes without saying that members of the SANDF and SAPS are not authorised to “punish” individuals who they believe are breaking the lockdown rules by forcing them to do exercises, or by assaulting or killing them.
One can only legally be punished if you have been convicted of a crime at a fair and open trial conducted by an independent judge or magistrate.
Turning a blind eye to the extra-judicial punishment meted out by members of the SAPS or SANDF of individuals who allegedly break lockdown rules will lead to abuse, including murder, as this case and this case illustrate. No surprise then that in the first four days of coronavirus lockdown police watchdog IPID received 21 complaints against the SAPS, including 3 deaths caused by police action, 2 corruption complaints and one of rape.
These actions by some SANDF and SAPS members are criminal in nature and those responsible should be arrested, prosecuted and punished.
But what about the lockdown regulations themselves? Clearly, it is laudable that the government took drastic measures to limit the movement of people and to radically reduce the opportunities for individuals to pass the Covid-19 virus on to each other. But this is not the end of the matter.
Some of the regulations seem to have been crafted without taking account of the fact that large numbers of South Africans do not live in houses and apartments in the suburbs.
The regulations have a disproportionately negative impact on poor people, especially people living in informal settlements and may also (as I point out below) in certain circumstance constitute unfair discrimination in contravention of the Constitution.
Moreover, I have already pointed out last week that some of the regulations – including those that define what constitute essential goods that may be sold in the shops – could well be void for vagueness.
While I will not repeat that argument here, I wish to discuss other legal questions that arise about the validity of some of the measures instituted to enforce the lockdown.
First, some of the regulations are unnecessarily inflexible and do not provide for legally required exceptions, especially the regulations that ban the movement of people. Thus, many divorced parents with children have a custody arrangement formalised in terms of an order of the court, which requires children to spend some time with one parent and some time with another.
However, the regulations require parents to ignore these court orders and to commit contempt of court as children may not be taken from one parent to another during the lockdown as required by custody orders.
Put differently, the regulations purport to circumvent court orders, thus trenching on the separation of powers doctrine and interfering with the independence of the judiciary.
The failure to accommodate custody arrangements also causes unnecessary trauma and has led to severe hardship for some parents and children, something that could not possibly be in the best interest of the child as required by section 28(2) of the Constitution.
Second, I fear that the provisions regulating who can provide an essential service, and who cannot, might unfairly discriminate against informal traders on the basis of race in contravention of section 9(3) of the Bill of Rights.
I am not at all convinced that the authorities are interpreting the current regulations correctly when they claim that these regulations prohibit informal traders from selling essential goods like food.
But assuming that the regulations either prohibit or make it very difficult for informal traders to continue selling essential goods, the regulations indirectly discriminate against informal traders on the basis of race.
Section 9(3) of the Bill of Rights prohibits both direct and indirect unfair discrimination, As the Constitutional Court explained in Pretoria City Council v Walker indirect discrimination occurs when the legal rule (that appears to be neutral) disproportionately impacts on the members of a group protected from discrimination.
For example, a rule that requires all students to write tests on Saturday mornings indirectly discriminates against Seventh Day Adventists, who are not allowed to engage in such activities on Saturdays.
In the case of informal traders, a disproportionate number of informal traders are black. While the regulations do not mention race, the regulations disproportionately impact on black people and therefore discriminate against informal traders on the basis of race.
The question would be whether this discrimination is fair or unfair. I think a strong argument could be made that the discrimination is not fair and that the regulations dealing with this are therefore unconstitutional and invalid.
The group being discriminated against is vulnerable and has historically suffered from discrimination and marginalisation. The impact of the discrimination on this group (as well as their families) is potentially devastating because it literally takes away this group’s ability to earn a living. This means it would not be easy to convince the court that the discrimination is fair, and therefore permitted.
On the other hand, it is not clear why the regulations make it impossible for informal traders to continue with their business, but allow formal traders to do so.
It would not be sufficient to argue that it is bureaucratically difficult to regulate informal traders to ensure they only sell essential goods.
This is because the intensity of the discrimination cannot be trumped by the mere need to avoid bureaucratic inconvenience.
It is also not clear that any evidence exists that the virus is more likely to spread at the local Shoprite with many shoppers inside, than at the informal trader on the street corner sitting in the open air and serving one customer every few minutes.
The purpose of the discrimination is therefore not so pressing that it would override the serious impact the discrimination will have on those affected.
For these reasons I will argue that a strong case could be made that the regulations unfairly discriminate against informal traders by making it impossible (or very difficult) for them to continue selling essential goods.
Third, it is not clear that section 27(2) of the Disaster Management Act authorises the government to prohibit anyone from selling non-essential goods.
Section 27(2)(i) of the Act does explicitly authorise the government to suspend or limit “the sale, dispensing or transportation of alcoholic beverages in the disaster-stricken or threatened area”. The prohibition on the sale of liquor is therefore expressly authorised. But section 27 does not authorise the prohibition on the sale of any other goods.
Given the fact that the legislature expressly authorised restrictions on the sale of liquor, but failed to authorise restrictions on the sale of other goods, it is not unreasonable to conclude that the legislature did not intend giving the executive the power to prohibit the sale of any other goods apart from liquor.
The ban on the sale of all non-essential goods may, therefore, be invalid.
It is true that section 27(2)(n) authorises the government to take “other steps that may be necessary to prevent an escalation of the disaster or to alleviate. contain and minimise the effects of the disaster”.
But given the fact that section 27(2)(i) – which deals with the suspension or limitations on the sale of goods – only allows such suspension or limitation to be imposed as far as liquor is concerned (and not for other goods), it is not so clear that this catch-all provision can be used as authority for the ban on the sale of all non-essential goods.
It is laudable that the government has taken drastic steps to curb the spread of the Covid-19 virus.
However, this must be done in accordance with the law and by respecting all the rights protected in the Bill of Rights. To the extent that the current regulations are not authorised by law, or to the extent that the regulations unfairly discriminate against anyone, the regulations are invalid.
This article was originally posted on Constitutionally Speaking by Professor Pierre de Vos of the University of Cape Town Law Faculty and is used with his permission.
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What do South Africa, China, Germany, the UK and the US have in common? That each differs from the other. Ample empirical evidence shows that economic and health measures that work sometimes, in some places, don’t always work everywhere.
South Africa’s President Cyril Ramaphosa has been praised for being decisive in the face of the COVID-19 outbreak. We agree with this positive view. Ramaphosa has demonstrated a quality of leadership matched by disappointingly few leaders globally. But we fear that some of the recently implemented policies are not best for the South African context. South Africa could be charting its own course, for the benefit of the nation and continent.
As matters stand, the South African lockdown emulates and, in some respects, surpasses restrictions elsewhere. Some of the restrictions are gratuitous, impractical or harmful.
For those living in freestanding properties in the suburbs, and enjoying an uninterrupted salary from a large company or institution, the lockdown is a little like a spiritual retreat. They can stay at home and drink coffee in their pyjamas on the deck without even a passing car to disturb them.
But most South Africans do not live like this. Even wealthy South Africans often live in complexes or estates without access to non-communal outside space. And many more live in crowded accommodation, whether in poor urban areas, formerly wealthy suburbs, central business districts, or well-spaced rural dwellings that are nonetheless occupied by many people.
It is no surprise that the lockdown restrictions are already being widely violated. This is not about disobedience: it is about the difficulty of complying. If you have to leave your dwelling merely to answer a call of nature, then you are not in a meaningful lockdown.
And even with army support, policing will be extraordinarily difficult. Communities would need to fall into line of their own volition, and their circumstances make it hard for them to do so.
There is no documented COVID-19 health benefit within a 21-day window to warrant prohibiting the sale of cigarettes. But there is a considerable short-term risk to the mental wellbeing of those who use tobacco as a coping mechanism.
This restriction on civil liberties causes misery for no public health benefit and may increase the risk of domestic violence as people suffer withdrawal in confined and stressful circumstances.
The prohibition of alcohol makes more sense. But behavioural factors must be considered, including the incentive to stockpile and the criminal opportunity for bootlegging. Restricting alcohol purchase prior to the lockdown might have made sense. That window has closed.
At this stage the case for putting alcohol on the list of essential goods is weak. The case for including cigarettes, however, is strong.
It is easy to write off the value of mental wellbeing at a time when serious physical disease threatens. But this is a mistake.
Mental illness has physical consequences for the sufferer and those around them and can make life seem not worth living.
When defining “essential goods and services”, we must ask “essential for what?” There is much that is not strictly essential to our survival that nonetheless, we value greatly. We may even value some of these things above survival, such as the wellbeing of our children.
The current usage of the word “essential” imposes a value judgement. It makes the avoidance of COVID-19 infection the paramount goal. It implicitly places less value on mental health and even physical health where that is independent of COVID-19.
Is a lockdown right in South Africa?
Context matters. Whether the lockdown works depends on the context in which it is done. The lockdown is worthwhile if it prolongs life for a significant number of people. But some of the measures in South Africa have no health benefit.
We are not advocating inaction or negligence. Reducing the rate of infection is a laudable goal. We would suggest, in particular, the addition of cigarettes to the list of basic goods, and the insertion of a right to exercise out of doors provided physical distance is maintained (along the lines of guidelines elsewhere).
More generally we suggest that, given very different conditions in relatively wealthy suburbs, inner cities, crowded low-income areas and rural areas, restrictions be considered on a provincial or local rather than a national basis.
This is in line with the successful practice in China.
GroundUp: Open letter to President Ramaphosa and the Cabinet from South African economists, economic and business analysts
Dear President Cyril Ramaphosa,
We commend you and your government for the bold and decisive public health measures that you have taken in response to the crisis precipitated by the COVID-19 pandemic. We welcome measures to stem the spread of the virus.
We are writing to you to suggest other measures that are urgently required to support and stabilise the economy and assist those hardest hit by the crisis. As you have noted, these public-health interventions will have significant adverse economic effects, compounding the persistence of inequalities in living conditions, wealth, income, and access to health and other services.
It is widely predicted that the virus will trigger a global recession, due to collapsing demand and the supply shocks this crisis will entail. It is estimated that South Africa’s GDP could contract by between 1.8 and 7%, with devastating impacts on jobs and livelihoods. This looming crisis requires large-scale economic interventions. For example, the United Kingdom, France and the United States have injected resources totalling 18.9%, 13.6% and 10.7% of GDP into their economies respectively. To date, the measures announced by the South African government, although welcome, do not match the scale of the challenge.
In the face of this looming crisis, we believe more significant action is required. These interventions must protect the most vulnerable.
This response is different from previous attempts to resuscitate ailing economies. We must both acknowledge that physical distancing and a lockdown will slow economic activity and that extraordinary measures are needed to cushion the resultant hardship and avoid long-term social and economic harm.
There is a significant risk that millions in poverty will fall into destitution; millions more, currently in work, will be driven into poverty and become unable to meet their basic needs; and thousands of businesses will be forced to close due to falling demand as a result of the lockdown, falling incomes and a contraction of economic activity.
The self-employed, atypically employed, informal workers, and small businesses are particularly vulnerable, but none will be exempt from its effects. Traditional social support networks will be disrupted.
The long-term impact on business capacity, and physical, financial, and human capital, could be devastating to our already ailing economy. In any already deeply unequal society, we know that the hardship will fall hardest on black people, and especially black women and children.
Economic interventions must, therefore, aim to: 1. support households and communities, 2. protect workers, 3. sustain businesses, 4. strengthen public health interventions, and 5. strengthen the economy.
While we appreciate efforts already undertaken in each of these areas, we are concerned that they are not comprehensive enough, and are not being implemented sufficiently rapidly or on a large enough scale to prevent real hardship for millions of South Africans.
While we recognise that the stringent social isolation measures are unavoidable, we need to commit as a society to ensure they do not cause unnecessary hardship to our people, and especially to the working poor and other vulnerable groups.
The following measures indicate the kinds of opportunities that are available.
Support households and communities:
Income transfers to lower-income and affected households, in the form of a special COVID-19 grant, a top-up to existing grants, and/or a universal basic income grant. Creativity is needed to speed up delivery, including income transfers via digital payment mechanisms. We appreciate the practical difficulties involved.
Targeted, temporary and compulsory payment holidays from municipal taxes, rent and mortgages, and other debts owed, and a ban on evictions from houses, including on farms.
Undertake measures to relieve women of the burden of care, in and outside the home, for example, by the provision of childcare for essential workers and additional income support.
Ensure food security and food sovereignty through a coordinated and safe roll-out of food packages in food-stressed neighbourhoods, working with community groups to build collective action and solidarity. Children require special attention.
Guarantee wage payments so that monthly wages of all workers are secured for the full duration of the lockdown; the expansion in UIF payments is both welcome and critical in this regard.
Rigorous implementation of leave requirements so that workers are not forced to use annual leave during the furlough period, and ensuring temporary workers as sufficiently accommodated.
Extend unemployment benefits to casual and informal-economy workers, including the provision of temporary unemployment payouts for lost income during periods of lockdown.
Ensure additional health and safety provisions are in place for essential workers and for when workers return to work.
Significantly expand access to low-rate emergency loans, including through low-cost liquidity provision by the South African Reserve Bank. The current amount of funds available, and the voluntary nature of the “solidarity fund”, fall well short of the expected need. Moreover, there is some evidence that the solidarity fund has diverted donors from other charities that play a vital role in supporting the most vulnerable.
Targeted, temporary and compulsory payment holidays from municipal taxes, rent and mortgages, and other debts owed.
Other forms of targeted and temporary tax relief if low-cost loans and payment holidays are insufficient.
Strengthen public health interventions:
Increase the additional resources that are being directed to the health system, including for testing, treatment, medicines, community health care, and COVID-19 scientific research.
Strengthen the requirement for resources to be pooled between private and public healthcare providers, particularly for free testing and treatment of COVID affected patients.
Rapidly scale up government’s attempts at the local production of critically needed health products, medicine and equipment.
Scale-up efforts to ensure greater access to water and sanitation, through the provision of water access points, safe ablution facilities, and removing restrictions on homes with water meters. The provision of soap and/or sanitiser is important.
Ensure free mobile data and public internet access, to keep the public informed and curb the spread of fake news.
Strengthen the economy:
Monetary policy measures to guard against capital flight and manage the exchange rate, ensure access to affordable credit, and ensure sustainable government bond rates. A “helicopter drop” of funds to households – for example, R1000 for each individual for a period of four months – could complement the grants discussed above.
Reviewing the current Medium-Term Expenditure Framework which requires considerable budget cuts, including in wages and healthcare.
We appreciate the Temporary Employment Relief Scheme, which aims to prevent retrenchments while maintaining standards. In the past, however, ensuring rapid and effective scaling up of the scheme has proven difficult. It is crucial that implementation is prioritised in the current crisis.
These measures will require additional government financing. We appreciate the effort to mobilise funds outside the fiscus – such as the Industrial Development Corporation (IDC), Public Investment Corporation (PIC), Unemployment Insurance Fund (UIF).
However, the scale of interventions required will necessitate additional fiscal and monetary expansion by the Treasury and SARB respectively, as has been the case worldwide. A concrete plan for responsibly managing this must be tabled, a number of signatories are working on proposals in this regard. In addition, we support your call for global transfers and action on the international level.
Commitment, implementation and responsiveness remain a major challenge. While swift action has been taken on health responses, economic interventions have been subject to delay, confusion and incoherence. We need to accept that as with health policy, some risks will need to be taken in this unprecedented situation.
While the Presidency must direct interventions, as far as possible the economic interventions should seek to empower communities, promote their mobilisation, and build social solidarity, as has been noted by a wide number of civil society organisations.
The Presidency must reassure the most vulnerable people and businesses that they will be protected.
This moment calls for all South Africans to contribute. We are willing to support in advancing these shared objectives. We would welcome the opportunity to put these proposals before yourself and the appropriate forums and provide additional technical support as needed.
Professor Vishnu Padayachee – Distinguished Professor and Derek Schrier and Cecily Cameron Chair in Development Economics, School of Economics and Finance, University of the Witwatersrand
Dr Gilad Isaacs – Co-Director, Institute for Economic Justice and School of Economics and Finance, University of the Witwatersrand
Dr Basani Baloyi – Economist, Oxfam South Africa
Lumkile Mondi – Senior Lecturer, School of Economics and Finance, University of the Witwatersrand
Professor Imraan Valodia – Dean of Faculty of Commerce, Law and Management, University of the Witwatersrand
Professor David Everatt – Head of School, Wits School of Governance, University of the Witwatersrand
Dr Pali Lehohla – Pan African Institute for Evidence and the former Statistician-General
Professor Uma Kollamparambil – Head of School, School of Economics and Finance, University of the Witwatersrand
Dr Grové Steyn – Director, Meridian Economics
Professor Matthew Ocran – Professor and Deputy Dean, Faculty of Economic and Management Sciences, University of the Western Cape
Professor Pundy Pillay – Professor of Economics, School of Governance, University of the Witwatersrand
Professor Mark Swilling – Distinguished Professor of Sustainable Development, School of Public Leadership, Stellenbosch University, Stellenbosch University
Dr Vimal Ranchhod – Chief Research Officer, School of Economics, University of Cape Town
Dr Katherine Eyal – Senior Lecturer, School of Economics, University of Cape Town
I try not to leave the house too often, but I needed some stuff, so headed to a local mall in Pretoria East, thinking it should not be too risky now people know it is imperative to keep their distance from one another.
More fool me.
I had been shocked and scared at a media briefing last week at the SA Government’s Communications HQ in Pretoria to see journalists, cameramen and officials failing to observe basic common-sense advice to stay well apart from one another.
The tables had been laid out to keep the journalists safely apart, and the microphones (which worked some of the time, but not all of the time) were sanitised after every question, but the room became over-full. No observance of the government’s own rules on restricting the numbers at a gathering. At one stage, officials were asked to leave the room, and most did. Then they slowly trickled in again.
From now on, I will follow such briefings on TV.
Back to today’s shopping expedition. My first brief stop was at a Spar store, which looked pretty deserted. Even so, I was asked to wait until one customer had left before I could go in. No bread flour on the shelves, so I bought very little, and left, having been sanitised on entry and exit. Bloody well done, Spar – you will save lives.
Not so the Dischem pharmacy. We were sanitised when entering and leaving, but pharmacists – yes, pharmacists – were not respecting social distancing; other staff were not, either. People thought I was somehow strange when I asked them to stop blocking the aisles so I could pass them safely. A cesspit of infection? Not that bad, maybe, but disturbing nonetheless.
I called the manager, who told me he was in a meeting to work out how to tackle this. In the meantime, though, I am terrified that the chances of infection are unacceptably high. I left. Shocked and surprised.
You don’t visit a chemist shop to catch a deadly disease.
On to the Checkers supermarket. Same problem. Staff in huddles in the store and at the checkout. Hostile stares when I asked people to step aside so I could keep a safe distance. It struck me that there were too many people in the store and I hope they were keeping a check on overall numbers.
Yet again, the store manager was hailed. Less responsive this time. He looked tired and I seemed to be an intrusion. I won’t suggest he shrugged off my concerns. But there was no apparent sense of urgency. His feeling seemed to be that people had been told how to behave and that this was going to be a constant challenge.
On the plus side, there was sanitation for those entering and leaving the place and people wanting social-grant assistance were kept in a separate queue outside the store (a bit close together for my liking).
It is, of course, a massive worry that people in poorer areas of our country are not properly observing the social distancing directions, often through no fault of their own, and because these are impractical in such over-crowded communities. The huddling which seems to be prevalent in unpoliced queues is very dangerous.
I had expected better in the leafy middle-class suburbs, though, where it is possible and relatively easy to do more to help contain the spread of the virus.
When I see affluent shoppers of all races, and store workers who are in the front line, failing to protect themselves and those around them, I am driven to despair.
Wake up, South Africa. We are all at risk and we must all take care to protect ourselves…and others!
This is going to get far, far worse unless and until the message can be better and more forcefully conveyed. And followed. Everywhere. By everyone.
Now, more than ever, it is very wise to just stay at home.
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The COVID-19 pandemic is an extreme crisis that puts the government under severe pressure. It puts the political judgement of the president or prime minister under the most intense spotlight. Not since the height of the Cold War have the stakes been higher.
The constitutional and governance dilemmas are acute, with especially thorny dilemmas that concern the limitation of civil liberties. The judgement of political leaders will be crucial in determining how well society will cope with the pandemic and how quickly it will recover – with myriad profound social, economic, cultural and constitutional implications, and life and death consequences.
The first question of timing is of a “first responder” type. Composure and clear-headedness are required in the initial diagnosis. How serious a threat is it? How imminent? How quickly will it escalate? What is the first priority action?
And even more fundamentally, at what point should the government curb freedom in order to contain the spread of the coronavirus and mitigate its impact? Already, we have seen a range of responses globally – from countries that apparently reacted too late, to those who acted relatively early.
At this stage, trust is the primary commodity. Citizens need to be convinced that their government is providing the right guidance and that the correct precautions are being put in place, proportional to the threat.
At this point, therefore, the optics can matter as much as the underlying policy substance.
It would seem that, for example, neither US President Donald Trump nor British Prime Minister Boris Johnson was sufficiently trusted nor sufficiently clear in the early phase of their responses. Their attempts to encourage self-regulation and voluntary compliance with public health measures failed. Both have had to backtrack quickly towards enforced lockdowns.
In contrast, South African President Cyril Ramaphosa has succeeded in conveying a calm and measured leadership persona.
In some quarters he’s even been described hyperbolically as having become a “wartime president”. He’s also been ably supported by his health minister, Zweli Mkhize, who is rising to the occasion.
Timing II: When to enforce a “lockdown”?
This is a tricky question, particularly in constitutional democracies where interesting legal considerations come into play. At the very least, a change in the law may be required or special powers invoked.
Again, Ramaphosa was decisive in declaring a national disaster on Sunday 15 March, as a part of his initial response package.
At the time, with only 51 known cases of coronavirus infection in South Africa, it might have been regarded by some as an over-reaction.
Yet, by invoking the provisions of the Disaster Management Act the government extended its authority so that it can by regulation impose restrictions on, for example, the number of people who may gather in any one place.
Importantly, the regulations issued in terms of the declaration must comply with the provisions of the Bill of Rights. A court can declare specific regulations unconstitutional if they impose limitations on rights in a way not justified by the limitation clause.
If the initial set of rules and the call for self-restraint fails to prompt a substantial change in social behaviour sufficient to slow down the rate of increase in infections and serious illness so as to ensure that healthcare systems are not overwhelmed – the so-called “flatten the curve” strategy – the government can ramp up the restrictions and impose a “lockdown”.
The biggest judgement of all: weighing up competing needs
Clearly, it is not too soon to be imposing more drastic restrictions on movement.
In South Africa’s case, the greatest concern is that the virus will be transmitted to densely populated working-class communities mainly through congested trains and taxis.
Hence, the need to close down the economy for all but “essential” operations and business.
And herein lies the most difficult dilemma of all: how to weigh up competing needs for public health and human security in the face of the coronavirus threat on the one hand, with the harm that will be done to the economy and to people’s livelihoods by locking down?
In the past days, the contours of a fascinating but delicate new public discourse have begun to emerge. This is the libertarian concern for freedom of the market, which has found resonance in other quarters.
Political leaders stand between the horns of this dilemma. How much weight should they attach to longer-term but potentially more devastating consequences caused by an economic depression in the face of an immediate short-term threat to public health? Are they even willing to entertain this delicate intra-generational debate, which contains deep ethical as well as complex policy considerations?
Which leader would be willing to adopt a policy prescription that increased risk and the number of deaths from COVID-19 in the short term in exchange for a less severe economic downturn in the longer-term?
Who should political leaders listen to?
The emerging debate about short term public health versus longer-term economic welfare raises the further question of who political leaders should listen to. Given the heavy political judgements required, can they afford to listen only to the medical experts? Or can they afford not to do so?
This, too, is a question of political judgement. Who else to bring into the decision-making war-room to help prevent groupthink? As the iconic work of Yale psychologist Irving Janis revealed when comparing the decision-making of President John F Kennedy during two crises –- the Bay of Pigs fiasco and the Cuban Missile Crisis -– shows, tempting though it might be for a political leader to tighten the circle to his or her most trusted advisers this may well lead to “groupthink” and not carefully tested and rigorous decision-making.
Ramaphosa’s inclination has always been to “show me the evidence”. He has not departed from this approach during the current crisis, making it clear that his decision-making is based on the available science and the guidance of public health experts.
As South Africa’s creaking public health system is put under enormous pressure in the coming weeks, and the socio-economic and public order consequences of the economic shutdown bite, so his crisis management skills will be sorely tested.
Which civil liberties to limit and why?
As the pandemic crisis worsens, it is clear that the constraints on “normal” freedom will need to be increased. But which civil liberties should be constrained, and in which way and on what basis, and for how long, are all difficult questions?
For example, is it justified to suspend data protection rights to enable the government to track infected individuals or high-risk citizens via their cellphones?
Travel restrictions and other freedom of movement constraints raise their own problems – when, where and on whom should government imposes such restrictions? As to curbs on freedom of expression, it is clear that fake news can wreak havoc. But should it be criminalised at a time when it is also in the public interest to encourage whistleblowers to speak out from inside government, as well as a free flow of information across society?
Tempting though it may be for governments to close down information flows to contain public reaction and potential panic, transparency is key to good communication and maintaining trust.
This requires political leadership that is open and candid about the challenge and about what it is not able to do as much as what it is doing to tackle the crisis.
When is it necessary to declare a state of emergency?
A worst-case scenario includes widespread social unrest and a breakdown in public order as a result of shortages in basic necessities and a sharp increase in poverty and unemployment as a consequence of the economic shutdown.
So, lastly, it may be necessary to take the most drastic and potentially draconian legal decision: the imposition of a state of emergency.
For South Africans, this has a particularly painful resonance. Older citizens will recall the mid-1980s when the apartheid government was trying to suppress the liberation movement.
A state of emergency will have the effect of suspending much of the Bill of Rights. The decision-making vortex, already complex and fraught, will have entered a whole new terrain of crisis management which will test every sinew of Ramaphosa’s leadership skills and that will either make him or break him.
Many were horrified to see huge numbers of people ignoring government advice in the UK recently, enjoying a weekend in the sunshine swarming markets, city parks, national parks and beaches.
The advance of COVID-19 has triggered a broad-scale mission of “responsibilisation”. This means that political leaders, health experts and even celebrities, neighbours and loved ones have called upon us all to act responsibly in order to slow the spread of the virus, and to minimise the damaging effects of the pandemic. And while many people did follow advice and stay at home, those who did not were enough to cause alarm, and now prime minister Boris Johnson has put Britain in lockdown.
The reckless and selfish behaviour witnessed around the world from Florida to Hong Kong has drawn much ire. Why do some people dodge their responsibility in these difficult times? And should we rely on individuals making responsible choices to begin with?
I am a researcher of consumer responsibilisation, which means I study how consumers come to accept – or reject – personal responsibility for the consequences of their actions. For example, my work looks at how culturally prevalent views on, and emotional reactions to, social problems affect consumer responsibilisation – as well as how consumers can be motivated to accept responsibility. This work has inspired me to consider current developments in COVID-19 from this particular vantage point.
In Denmark, where I live, the queen delivered a heartfelt appeal to the nation, stressing that breaking the chain of infection requires that “we all behave sensibly”, and lamenting those who continue to behave irresponsibly. It was the first such crisis address since the end of the second world war. Like many others, Queen Margarethe is troubled by the reckless and inconsiderate actions of some.
Partying, stock-piling essentials, panic buying and “escaping” to rural areas have all been criticised in news outlets and social media. These examples reveal some of the challenges the government has faced in making the public take responsibility. As consumers we have been told that there is no need to panic. The flow of life and the goods required to sustain it will continue pretty much undisturbed.
As responsible citizens, we have been told that our lives must change radically. To continue our old ways is to endanger ourselves and those who are vulnerable. In the wise and somewhat paradoxical words of the singer and self-styled “responsibiliser” Billie Eilish: “Don’t panic, but also don’t be stupid”.
The young people partying for spring break on the streets and beaches of Miami excelled in the “don’t panic” part, but unfortunately failed to appreciate the social distancing side of things.
The young and healthy have not appeared to be fazed by the dangers of COVID-19, which is commonly believed to threaten only the old and the frail.
To make matters worse, the likelihood that we are not so much stopping the virus, but merely slowing down its spread has acted as a disincentive, aggravated by the absence of compelling communication – until now – about the critical value of slowing the virus.
Although commonly thought of in terms of public “awareness” and dissemination of expert knowledge, responsibilisation is as much a matter of emotion, as it is a matter of reason. Emotions such as hope, shame and pride play a decisive role. Do we feel responsible? Do we feel that our actions can make a real difference? Are we ashamed when we fail to act responsibly?
It is one thing to be indifferent to statistics and expert warnings, and another to experience shaming for contributing to the suffering and death of others, as hospitals run out of beds and respirators? Personal responsibility is often based on the ability to relate emotionally to other human beings – their hopes and fears, their pain and suffering.
Collective and individual responsibility
Besides issues of empathy, when it comes to COVID-19 responsibilisation goes against the grain to a certain extent. In contrast to recent crises caused by terrorist attacks, weather events and political division, this time we are asked to stand together by standing apart. Instead being called to occupy the streets in protest, and frequent shops and pubs to support the local economy, we have been asked to stay in and to keep our distance. Acknowledging this difference might help us move forward.
Yet this sense of responsibility has not materialised in some people. In our haste to find better ways to make the public embrace its responsibilities – especially the reckless and the inconsiderate – the focus on personal responsibility and individual choice should never prevent society from taking necessary collective action. The UK government has now taken that action.
As New York Times commentator Charlie Warzel observed recently, one reason COVID-19 advice has been framed as a matter of personal choice and responsibility was to avoid the costs and duties of political and collective intervention. Political-economic research has taught us that responsibilisation entails a shifting of burden from the state and corporations to individual citizens and consumers – a shift that does not always serve the public interest.
Governments, corporations and other institutions must accept their share of responsibility too, even when this requires taking unpopular and costly measures. Clearly, Prime Minister Boris Johnson has decided that decisive collective rules and interventions will be a faster and more reliable solution than the soft “nudging” of individuals to make the right choice.
Yet, as with other countries that have taken this action, further dilemmas arise as to how to ensure compliance with the new measures.
More than ever, the delicate balance between collective and individual responsibility should be at the forefront of public and academic debate.
The lockdown has begun. Only movement deemed “essential” is now allowed – a significant limitation if not a suspension of our right to freedom of movement guaranteed in section 21 of the Constitution.
This opens a can of worms that our constitutional democracy might be ill-equipped to deal with.
Imagine the following: You have been beaten senseless by people in uniforms. They did not believe you when you said you were on your way to the pharmacy to purchase medicine. Your insistence that you were acting well within the confines of the coronavirus lockdown regulations angered them. This lead to an unequivocal infringement of your right to freedom, security and bodily integrity under section 12 of the Constitution. The uniforms instruct you to go home immediately or they will arrest you.
Bloodied, you want to immediately see your family attorney, but you know that is not an essential business. This means that the attorney’s office is closed, and you are not allowed to drive there. You go home and call your attorney who is at home. Your attorney sympathises with your case but reveals that for the duration of the 21-day lockdown, attorneys can do preciously little to assist you:
The courts have significantly scaled down their operations, the attorney cannot access their offices, interns or associates, and therefore cannot print and collate all the necessary documentation in line with the requirements in the Uniform Rules of Court.
You are left without a remedy, at least until the lockdown is lifted. And this might be longer than the anticipated 21 days. If you are arrested instead, the stakes in this constitutional void increase tenfold.
None of this is to imply that law enforcers or soldiers will engage in this conduct. But the protection of our rights in the Bill of Rights exist precisely for such eventualities, no matter how unlikely or rare.
Access to justice is an entitlement that may not be extinguished in a crisis. The courts must always be open and available to South Africans to challenge violations of their liberty and of the law, particularly if the government is the accused party.
Attorneys are the first port of call in this situation. They bring access to justice and judicial oversight to life. But without being allowed to access their equipment – videoconferencing facilities, printers, and so on – or their support staff – their job has been rendered next to impossible for the duration of the lockdown.
Civil liberty groups cannot even challenge the legality of the lockdown itself. To do so, they will need to brief attorneys, who must comply with a host of formalities. They need to submit signed and commissioned affidavits, which cannot be done remotely. Clients will thus need to go to a police station to have their affidavits commissioned, after which they will need to take it to the attorney’s home where it will be scanned in terms of the CaseLines system. But many, perhaps most, attorneys do not have scanners or printers at home, particularly in rural areas.
Assuming all this can – but it cannot happen, as visiting an attorney’s home will not be considered essential in terms of the regulations – there will need to be a hearing.
The lawyers on both sides, their clients and the judge will need to tele- or videoconference one another. This requires sophisticated facilities. Those of us who use Skype regularly know that it is nowhere near reliable enough for a judicial matter. Imagine if the advocate for the applicant loses their connection to the internet; or extended load-shedding sets in?
What about indigent clients who cannot even begin to jump through all the additional hoops that might be required to access justice during this period? Legal services are already out of reach for millions.
Those who might, in theory, have access to an attorney will spend their money on food and hand sanitisers – not on copious amounts of data and airtime to maintain constant contact with their attorney. It is an untenable situation.
To their credit, the courts have issued guidelines and directives hoping to ease this process. Provision is made for digital hearings and somewhat lowered formality requirements. Exceptions for urgent applications, domestic violence and maintenance disputes have also been issued. But other, no less important cases, such as challenges to evictions (particularly during a lockdown), cannot be heard during the 21 days.
This has created a constitutional void. In effect, the prized Constitution that South Africa adopted in 1996 after years of repression, including two states of emergency in the 1980s when life, liberty, and property were routinely infringed by the government, does not apply.
Officially and on paper, the supremacy of the Constitution has gone unaffected, but if in practice we cannot set the process in motion to realise and operationalise the provisions of the Constitution, then constitutional supremacy offers cold comfort to those whose rights have been infringed.
Many of the measures that the government has instituted to curb the spread of the coronavirus and the surrounding panic are justifiable. In some ways, the South African government has outperformed its counterparts around the world.
But sections 1(c) and 2 of the Constitution declare unequivocally that the Constitution and the Rule of Law are supreme – overriding all other considerations – and that any laws or conduct that are inconsistent with it are void and unconstitutional. This constitutional supremacy requires the continued operation of the legal community: The superior and magistrates’ courts, law firms, advocates, the State Attorney’s Office, and law clinics for the disadvantaged must remain available.
It might be too late to bring about wide-ranging changes to the present lockdown. But once the lockdown ends, and when similar crises hit South Africa in the future, we need to be ready to ensure that the Constitution’s blanket of protection is not ripped from any South Africans who want to vindicate their rights.
Martin van Staden is Head of Legal (Policy and Research) at the Free Market Foundation. He is pursuing a Master of Laws degree at the University of Pretoria and is author of ‘The Constitution and the Rule of Law: An Introduction’ (2019). The views expressed in this article are those of the author and not necessarily those of the Free Market Foundation.
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Police and soldiers will be deployed to enforce the Covid-19 lockdown. If they do so with a light touch, the lockdown is more likely to be respected.
For South Africans old enough to remember apartheid, the states of emergency of the 1980s and the pass laws, the possibility of being stopped on the streets by police officers or soldiers is a frightening prospect. This time, of course, our movements are being restricted for our own good, to fight off the Covid-19 epidemic, and we must all comply.
But, especially in a country with a history like ours, it is essential that police officers and soldiers enforce the lockdown with a gentle hand.
Remarks like those attributed to Defence Minister Nosiviwe Mapisa-Nqakula on Wednesday are not reassuring. Mapisa-Nqakula reportedly said soldiers would only resort to “skop, skiet and donner when circumstances determine that”, then added: “For now, we’re a constitutional democracy…”.
Let’s hope that the “for now” was a slip of the tongue or a misquote. We are indeed a constitutional democracy and the minister, who was part of one of the teams negotiating the democratic constitution, knows this very well.
But right now we are a constitutional democracy in a state of national disaster, and all of us, except essential workers, have been instructed not to leave our homes (except to do essential things like buying food and medicine or going to the hospital).
The police and the army have been mobilised to enforce that, for the good of us all. But it is essential that Mapisa-Nqakula and police minister Bheki Cele make it very clear throughout the army and police hierarchy, that police and soldiers must show restraint. They will be dealing with many frightened and confused South Africans and they must apply the law gently and with care.
There is no need, for example, to be draconian with a spaza shop-owner selling food without the required documents, a shepherd guiding his cattle, or a person doubling up a visit to the shop with walking their dog or jogging.
In informal settlements and rural areas, people will often have to go outside to meet their basic needs, even if it is just to escape cramped quarters for a few minutes. The police and army should help, not hinder, the efforts of people to get food and water, and to use toilets and taps; and they should help government and civil society efforts to get food, water and medicines to townships. They should work with, and not against, communities.
As the Civil Society VC-19 Coalition has said, “lockdown as a public health strategy cannot work unless it is led by the provision of a good safety net of services and resources which can allow people to remain safely at home”.
As for us, we should be mindful of what the police and soldiers are tasked with doing. They are likely to be tired, anxious about their own health and that of their families, and perhaps angry that they must be exposed to risk while others are safer at home. We owe them our thanks.