Ministers need to provide rational, fact-based, and truthful justifications for lockdown regulations

Minister Zuma

By Pierre de Vos

On Wednesday night, minister Nkosazana Dlamini Zuma published new lockdown regulations to deal with the Covid-19 crisis in South Africa. Some of the regulations will apply for the duration of the national state of disaster, while others relate specifically to the level 4 lockdown that commenced on the 1st of May.

Unfortunately, the regulations are not always a model of clarity. It is also not clear how some regulations, in fact, advance the stated goals of the declaration of a national disaster, rendering them vulnerable to constitutional attack.

From a constitutional perspective, arguments about the pros and cons of various lockdown regulations – the ban on the sale of cigarettes, alcohol and (maybe) some books, the introduction of a curfew between 20:00 and 05:00 each day, the ban on exercise except between 06:00 and 09:00 in the mornings, the treatment of informal traders – seem to miss the point. 

Legally the question is not whether the sale of certain products is a good or a bad thing. Neither is it relevant that the ban on certain activities might lower the crime rate or, conversely, might embolden members of the criminal underworld. Legally the broad question is whether a specific regulation can be justified, given the stated aims of the declaration of a national disaster.

Of course, it is not only for legal reasons that ministers should provide a proper, fact-based, rational, justification for every lockdown regulation they seek to impose. In a constitutional democracy, voters ultimately hold the government accountable at the ballot box, based on the available information. 

While some voters may blindly vote for the governing party (or for another party of their choice), others will make a decision on whether to return the government to power based on the performance of the government.

Some voters may well decide not to support an incumbent party when its government ministers fail to explain monumental decisions like the imposition of a lockdown or fail to advance rational reasons for specific regulations.

Moreover, in a constitutional democracy, it is thankfully not possible effectively to enforce draconian lockdown regulations without the buy-in of the public.

The most effective way to ensure buy-in is by providing members of the public with rational, fact-based, and truthful justifications for specific regulations. 

If the government treats the public with respect by providing us with honest, rational, fact-based justifications for the imposition of certain rules, we are more likely to trust the government in return and comply with the stringent restrictions. A failure to provide rational, fact-based, and truthful justifications, will diminish compliance and will, therefore, be counter-productive.

Matters will be made worse if the government decides to use the police and the military to try and impose its will by force in the face of widespread public resistance.

Back to the legal argument. There are at least two grounds on which the validity of lockdown regulations could be challenged. Both these grounds depend to some extent on whether a plausible and truthful justification was provided for a specific regulation. The justification must be related to achieving the purpose of the declaration of a national disaster.

First, to comply with the principle of legality, all regulations must at the very least be rationally related to the stated aims of the declaration of a national disaster.

Recall that the declaration of a national disaster allows for the promulgation of regulations, but only to the extent 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. 

If a regulation is aimed at achieving another purpose altogether (like lowering the crime rate or promoting public health concerns not directly related to the Covid-19 crisis), it would not meet the minimum requirement for validity.

If the regulation is aimed at achieving one of these stated goals, but there is no rational link between what the regulation actually says and its stated purpose, this would also render the regulation invalid. 

An absurd example: If a regulation requires members of the public to appear in public wearing purple masks (based on the superstition that purple wards off evil), it will not be rationally related to the aim of slowing or suppressing the spread of Covid-19.

Another example: a regulation that prohibits the sale of KFC because the consumption of large amounts of KFC is fattening and may cause diabetes will not be rationally related to the purpose of slowing or suppressing the spread of Covid-19 and will be invalid.

Second, where a regulation limits one of the rights guaranteed in the Bill of Rights, the regulation will only be constitutionally valid if it is justifiable in terms of the limitation clause. Many of the lockdown regulations do limit rights protected in the Bill of Rights.

The right to equality, dignity, and freedom of movement, and the right to access to food and housing may be of particular importance in the current situation.

In terms of section 36 of the Constitution, the rights in the Bill of Rights may be limited:

only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d)  the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.

Once it is established that a regulation limits a right – as many of the lockdown regulations do – the burden to justify the limitation lies with the government, who must provide both factual material and policy considerations that might justify the limitation. In Moise v Greater Germiston Transitional Local Council the Constitutional Court explained this as follows:

The weighing up exercise is ultimately concerned with the proportional assessment of competing interests but, to the extent that justification rests on factual and/or policy considerations, the party contending for justification must put such material before the Court… If the government wishes to defend the particular enactment, it then has the opportunity – indeed an obligation – to do so. The obligation includes not only the submission of legal argument but the placing before Court of the requisite factual material and policy considerations…. [The] failure by government to submit such data and argument may in appropriate cases tip the scales against it and result in the invalidation of the challenged enactment.

Some of the lockdown regulations are likely to run into legal trouble because the government would not be able to provide a plausible factual basis for the assumptions underlying a regulation. Others may run into trouble because there is no obvious link between the regulation and its stated purpose.

But the most serious problem might well be that the purpose of the lockdown could have been achieved by regulations that infringe on the rights of citizens in a less drastic manner. 

As an example, let us look at the curfew which is being imposed from 20:00 each night to 05:00 the next morning. This provision clearly limits the right to freedom of movement guaranteed in section 21 of the Bill of Rights in quite an extreme manner. It is at best unclear that there is a factual basis for this regulation.

Has there been significant movement of people after 20:00 during the lockdown so far? Is there any factual basis that such movement increases the risk of infection? 

Furthermore, other regulations already restrict movement in a radical way, so it is not clear why this rule is necessary. To make things worse, no exception is made to allow individuals to go out for household emergencies like the need to buy electricity or airtime.

It would, therefore, be surprising if a court did not find that this provision limits the right to freedom of movement in a manner not justified by section 36.

The same logic applies to the restriction on exercise to the period from 06:00 to 09:00 in the morning. What is the actual purpose of this rule? I would guess it is aimed at making it easier to police the regulations.

But that does not seem to be a good reason to limit people’s right to freedom of movement as mere convenience will never justify a radical limitation on a constitutional right.

Furthermore, there does not seem to be a factual basis for the assumption that more people will get infected if they exercise after 09:00. Unlike other regulations that enforce physical distancing, there does not seem to be any relation between the limitation and the legitimate purpose of slowing down or suppressing the spread of Covid-19.

Less restrictive means – like strictly enforcing the ban on people exercising together – could surely be employed to achieve the same purpose. 

Here I am not primarily interested in the two regulations used as examples above. Instead, my aim is to show that it is not constitutionally permitted to impose limits on rights, without having a very good reason to do so.

The aim must always be to impose only such limits that are directly linked to the purpose of the lockdown and to limit rights as little as possible. 

We are not living in a state of emergency. Rights have not been suspended.

That means the duty of government ministers to justify the limitation of rights in accordance with the limitation clause have also not been suspended.

Such justifications must not be bizarre and spurious but must be fact-based, rational and truthful.

When no justification is offered, or where the justification appears to be irrational, it erodes trust in government and threatens the efficacy of the lockdown.

It also renders the regulations open to constitutional challenge and invalidation.

Prof Pierre de Vos is the Claude Leon Foundation Chair in Constitutional Governance, Head: Department of Public Law, at the University of Cape Town

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Lies, Damned Lies, and the Ciggie Ban.

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Ms Zuma, Minister for Misery

By John Fraser

I used to be quite good at debating, and alongside my chum Jim White (now a sportswriter for the Telegraph – what a waste), I won our university trophy.

I say this not to boast, but to suggest that when I am presented with the most outrageous arguments by someone whom we are supposed to respect and trust, I get a bit peeved.

I would fume, but that is now banned in SA.

Cigarette Czarina Nkosazana Clarice Dlamini-Zuma (born 27 January 1949, in case you want to add her to your birthday card list), the Minister of Cooperative Governance and Traditional Affairs, told the nation yesterday (Wed) that an initial recommendation to lift SA’s Covid-19-related ciggie ban was now being reversed.

Some restriction will be relaxed from tomorrow, but the hopes of smokers are disappearing, er, up in smoke.  Or not.   You get my point, anyway.

The health arguments have not changed much as we move from Misery Stage 5 to Misery Stage 4, and there has been no discernible change since President Ramaphosa told us a week ago that it was being proposed – prior to a public consultation – that the ciggie ban would be lifted.

The new factor, we are told, appears to be the 2 000 people who have wailed, gnashed their teeth, and told the minister to ban the un-banning.

The cracks in Ms Zuma’s arguments are obvious.

Firstly, just a few days were allowed for the submission of tens of thousands of reactions to the Misery Level 4 proposals before the rapid gazetting of the new regulations.  Days; not weeks; not months.  Not enough time to seriously assess and seriously ponder all the submissions.

And secondly, it is not surprising that a lot of people objected to the lifting of the ban, and fewer praised it.

The main reaction was to what concerned people, not to what had come as a big relief.

We had been told by Oom Cyril of the proposal to lift the ban and this produced no objection from the pro-smoking, pro-liberty brigade.  They did not see Mme Zuma lurking in the wings.  They lit, held up, and waved their lighters in a moving tribute to our beloved leader.

So those in favour of the relaxation of the rules saw nothing to get excited about.  They would soon be able to buy ciggies, tobacco, to put it all in their pipes and to smoke it.  No excitement, no floods of comments.  No objections, because it appeared there was nothing to which an objection was required.

To judge overall public sentiment from the response of the anti-smokers is therefore deceptive, misleading and irresponsible.

We hear there are tensions within the Cabinet, with Tannie Zuma on the ascendant, and Cyril now in the role of tea-maker, or something less demanding.

It seems that a nasty, dictatorial, intolerant, nanny-state is creeping in,  and not in a nice-nanny way like Mrs Doubtfire or Mary Poppins.

So, let us keep up the pressure to get this absurd ciggie ban lifted, along with the other deeply-damaging ban on booze sales.   These are depriving people of small pleasures during a period of mass misery.

Warn about the health concerns of excess or unsafe consumption, but show some common sense as well.

Don’t deprive the fiscus of desperately-needed taxes at a time when our economy is in the poo-poo, having just been hit by another downgrade:  from junk to garbage.

Let us light the fire on behalf of smokers and drinkers, against these politicians and their weasel words.

A cloud of authoritarian has descended over our rainbow nation.

Common sense must be revived, dusted off, and given a seat at the table.

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Coronavirus: why South Africa needs a wealth tax now

A woman carries a bucket of fresh water to an informal settlement in Khayelitsha, near Cape Town. South Africa has the widest wealth gap in the world.
Photo by RODGER BOSCH/AFP via Getty Images

Aroop Chatterjee, University of the Witwatersrand; Amory Gethin, and Léo Czajka

The consequences of the COVID-19 lockdown are yet to be fully determined and understood. But one thing we can be fairly certain of – in South Africa its impact will be shaped by the country’s inequalities.

Our study reveals that half of the adult population survives with near-zero savings, while 3,500 individuals own 15% of the country’s wealth. The response to the crisis must take this into account to help the most vulnerable while still safeguarding fiscal sustainability.

Based on our new study on wealth inequality in South Africa, we propose a progressive solidarity wealth tax. This would allocate the fiscal burden of current interventions on those most capable of paying. It is in line with the recommendations recently made by the International Monetary Fund to equitably attain fiscal sustainability and better position the economy for post-COVID recovery.

We show that a wealth tax on the richest 354,000 individuals could raise at least R143 billion. That equates to 29% of the announced R500bn fiscal cost of the relief package.

Unequal distribution

A lot of studies show how extreme income inequality is in South Africa, but little has been documented about wealth. Net wealth is the sum of all assets less any debts. Assets include cash, bank deposits, pensions, life insurance, property, bonds and stocks. Debt includes mortgages and other loans such as retail store credit accounts or loans from friends, family and money lenders.

In our new paper, we combine national accounts statistics, household surveys and exhaustive tax microdata to assess the reliability of available data sources. We also provide the most comprehensive possible picture of the distribution of wealth. This is the first time this has been done in South Africa.

Better data is needed – about direct ownership, capital income and assets held through trusts. Nevertheless, our results give a good sense of the magnitude of the disparities. Three key results are worth mentioning.

Firstly, in 2017, the 10% richest South Africans (all adults with a net worth over R496,000) owned 86% of the wealth, with an average of R2.8 million per adult. In contrast, about 18 million (the poorest 50%) were either in debt or had near-zero savings. With an average net worth of R486 million, the richest 3,500 owned 15% of the wealth. This was more than the 32 million poorest altogether.

Secondly, these extreme inequalities extended to all forms of assets. The richest 10% owned 99.8% of bonds and stock – which accounted for 35% of the wealth. The top decile also owned 60% of housing wealth and 64% of pension assets. Housing wealth amounted to 29% of wealth and pension assets to 33%.

Thirdly, we show that wealth concentration has remained broadly stable since 1993, and may even have increased within top wealth groups. Wealth inequality remains significantly higher than what could be estimated in Russia, China, India, the US or France.

Why wealth inequality matters now more than ever

Our findings are particularly relevant to the current crisis. South Africans are unequally armed to survive the contraction of the economy produced by the lockdown. Our paper helps get a sense of the size of the population likely to be under intense stress in the very short term.

Before the lockdown, about half of the population was already in debt or had near-zero net wealth. Therefore, this crisis will at best sink millions of people further into indebtedness or force them to beg, loot or starve. Conversely, our paper shows that a minority of individuals are in a much less vulnerable situation.

The policy solutions needed to absorb the shock and recover fast must be carefully designed to take these factors into account. Principally, they need to reallocate resources to give everybody equal chances to survive the shock.

In this unprecedented crisis, the government announced a relief package with an R500 billion fiscal cost. One key remaining question is how such a plan will be funded.

The possibility of collecting additional tax revenue from those ablest to contribute has not yet been brought to the table. We believe it should be considered. Our estimation suggests it would raise significant revenues. And it would allow the country to allocate the cost of the national response on the least vulnerable.

In the spirit of solidarity, a wealth tax could be part of the solution to safeguard long-run fiscal sustainability and inclusive growth.

How much could a wealth tax raise?

We propose a progressive wealth tax, which would apply only to South Africans with a net wealth currently superior to R3.6 million, that is the richest 354,000 (1% of the adult population).

The first bracket – all wealth between R3.6 million and R27 million – would be taxed at a 3% rate, the second bracket (R27 million to R119 million) at 5%, and all wealth above R119 million at 7%. Individuals with less than R3.6 million would be exempt. A billionaire would face a 6.7% tax rate: she would pay 3% on the fraction of her wealth higher than R3.6 million but lower than R27 million; 5% on wealth higher than R27 million but lower than R119 million; and 7% of the R821 million she owns above R119 million. This would leave her with a post-tax wealth of R933 million.

Other tax schedules could, of course, be designed. The objective here is to give an order of magnitude of the expected revenues.

Taking into account the recent Johannesburg Stock Exchange All Share Index drop in value and assuming a 30% evasion rate (as available evidence suggests), we simulate that such tax would raise R143 billion.

It would still leave rich individuals with very high levels of wealth: for each of the brackets, post-tax wealth would on average be R9.3 million, R50 million and R376 million respectively.

A realistic policy

Critics of a wealth tax argue that it would be too costly and complex to implement. But South Africa is well-positioned to administer this tax cost-effectively.

Firstly, the tax base we consider covers very few individuals, reducing the administration required.

Secondly, South Africa already has in place third-party reporting by financial intermediaries straight into the South African Revenue Service, providing information on capital income and ownership. Existing municipal valuations could be used to value property assets. This would cover the major components of asset holdings, especially stocks and bonds.

Capital flight, through offshoring or migration, is a potential risk. We account for this by making conservative assumptions about avoidance and evasion, and still project sizeable revenues. There is also markedly more cooperation between tax authorities to clamp down on undeclared incomes and assets in foreign jurisdictions, including tax havens. The premise is not a given. Capital flight implies forfeiting opportunities that considerably enriched them for the sake of avoiding a tax that barely makes an impact on their total wealth. Importantly, the wealthy themselves have said now is the time for solidarity.

A wealth tax, contrary to popular opinion, would not necessarily discourage job-creating investments. Maintaining fiscal sustainability while sparing the most vulnerable is more important to ensure a quick recovery and attract investments. Moreover, inherited wealth has a significant role in South Africa: we find high levels of wealth concentration even among 20-year-olds. Diminishing the importance of inherited capital with a wealth tax may actually be a better collective strategy to improve social welfare, including growth.

In light of the lessons learned from the Zondo commission of inquiry into corruption, taxpayers would need guarantees that this special tax will be properly collected and spent. The national treasury already uses ringfencing mechanisms to make revenue and spending for specific projects accountable. To answer potential criticism, the government could build on such rules to generalise more transparent practices.

There may be theoretical implementation challenges of such a wealth tax. But we would argue that South Africa is well placed to overcome these.

When designing the radar for Britain during World War II, Robert Watson-Watt justified his choice of a nonoptimal frequency as follows:

Give them the third best to go on with; the second best comes too late, the best never comes.

This radar was pivotal in allowing Britain to overcome a larger, more sophisticated German air force.

In our situation, we cannot let perfection be the enemy of progress, or in this case, survival.The Conversation

Aroop Chatterjee, Research Manager: Wealth Inequality, Southern Centre for Inequality Studies, University of the Witwatersrand; Amory Gethin, Research Fellow – World Inequality Lab – Paris School of Economics, and Léo Czajka, Research fellow – World Inequality Lab – UCLouvain

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Podcast wine tasting: a White and a Rosé from CanCan

                                            Give it a go go….

By John Fraser

Apologies all round.  With no end in sight to the insane lockdown-linked prohibition in SA, many drinks cabinets are bare, as the Cabinet’s barbarians  seem to think that the virus can be toppled by misery and sobriety.

However, we recorded this podcast in happier days, and hope it will soon be possible for us all to again go out and buy the wines we glugged. 

Michael Olivier was on full guru setting, and introduced us to a White and a Rosé from CanCan, both (in case you hadn’t guessed) in cans.

The reaction was a tad mixed, but on balance it was thought that the packaging was pretty irrelevant, and that the wine was up to standard.

The tasting panel was plucked from a passing prison van.   Malcolm MacDonald from Clientele was joined by analyst Chris Gilmour and brander Jeremy (anyone seen Delilah?) Sampson.

So pull the ring on the top and see what a fine, fun podcast we have in the can: 



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Do also check out:  http://www.michaelolivier.co.za

Time to prohibit prohibition

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Trade, Industry and Competition Minister Ebrahim Patel

 

 

 

 

 

 

 

 

 

 

By John Fraser

Unless there is an outbreak of common sense, South Africa will have an indefinite ban on alcohol sales.

 

Trade, Industry and Competition Minister Ebrahim Patel announced this weekend that, from Friday, the country will move from the current Level 5 lockdown to Level 4.

As they stand, the new rules will prohibit the sale of alcohol, in stores or via e-commerce.

Now I can understand countries like Saudi Arabia banning alcohol, because it is a Moslem state, and some interpretations of the Koran prohibit booze.

However, South African is not a Moslem state, no legislation has been approved by Parliament to ban booze, and nor should it be.

There are, of course, hazards in allowing people to drink alcohol. For some it can lead to violence. There are also health concerns.

And yet, tobacco is being unbanned from Friday.

Now, I do not pretend to be a health expert, but I am pretty sure that – for most people – tobacco is a more dangerous drug than alcohol.

You have to weight up arguments and then to come to a logical conclusion.

However, if seems that there are powerful voices within the Cabinet who are putting their own prejudice against alcohol consumption above their duty to be objective public servants.

Shame on them.

There is no certainty about how many weeks or months it will be before the country can be promoted to Level 3, when it is likely that we will again be able to buy booze.

In the meantime, millions of South Africans – who are already enduring the lockdown, in fear of their jobs, scared about a deadly pandemic – are being deprived of the comfort and pleasure which a few glasses or wine or beer, whisky or cider would bring.

This is an intrusion into our lives and lifestyles, which is based on very disputable logic.

My heart goes out to those in the booze business, in the vineyards and to those retailers who are deprived of part or all of their livelihood.

A civilised pleasure has been banned in South Africa.

I don’t blame the virus; I blame the Cabinet.

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WHY THE MANAGEMENT OF THE LOCKDOWN THREATENS RESPECT FOR THE RULE OF LAW

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The police minister who likes wearing a hat

By Professor Pierre de Vos

The comical manner in which the government handled the “ban” on the selling of “hot cooked food” during the Covid-19 lockdown, highlights a larger (and more important) problem with the manner in which the lockdown regulations have been drafted and implemented. This goes to the heart of respect for the Rule of Law, a founding value protected in section 1 of the South African Constitution.

First things first. This is not a column complaining about the “ban” on “hot cooked food”. While the “ban” on “hot cooked food” makes the government look churlish and spiteful, and while it is not immediately clear how this “ban” advances the aims of the lockdown, the “ban” – on its own – is of little consequence, given the heavy-handed actions of police officers and members of the military, and the hunger and economic destitution facing many South Africans.

Instead, this is a column about how the lockdown, and the manner in which it is being managed, threatens respect for the Rule of Law.

Recall that Minister Ebrahim Patel insisted last week that the lockdown regulations prohibited supermarkets from selling hot food. The Companies and Intellectual Property Commission (CIPC) which administers the certification of essential services during the lockdown later went even further by claiming (in a now-deleted tweet) that this “ban” included frozen foods, where food had been cooked and then frozen.  (not frozen meat or vegetables). These claims were all untrue as the regulations at the time allowed the sale of “all food products”. The government, in effect, admitted that these claims were false by later amending the regulations to prohibit the sale of “hot cooked food”.

This was not the first time that ministers and officials had decreed that the sale of some goods were prohibited – despite the fact that the regulations were, at best, unclear about this and, at worst, allowed for the sale of the goods. Moreover, I worry that statements by ministers from the “law and order” wing of the executive, threatening members of the public and seemingly encouraging heavy-handed police action, have contributed to belief among some members of the SANDF and the SAPS that they have carte blanche to flout the law and to “punish” individuals who they believe are in breach of the lockdown regulations.

The constitutional problem here is not related to which products are classified as essential goods and which not. People are going to differ on this, and while I think some unwise choices have been made, this is not a matter of fundamental principle.  Neither is this about the sadly bellicose rhetoric of some politicians.

The problem relates to the lack of respect for the Rule of Law. It speaks to the attitude of some the ministers and officials who regulate the lockdown, and of some of the police officers and soldiers who enforce it, that “the law is what we say it is”. This attitude, taken to its extreme, may lead to extreme abuses, like the alleged killing of Collins Khosa by members of the SANDF.

Section 1(c) of the South African Constitution states that the Republic of South Africa is one, sovereign, democratic state founded, amongst others, on the value of the Rule of Law. This provision enjoys special protection and can only be amended with support of at least 75% of the members of the National Assembly.

The Rule of Law, which Marxist historian E.P. Thompson famously called “an unqualified human good”, is of pivotal importance to protect everyone from the arbitrary exercise of power and from the abuses that inevitably flow from this.

Two aspects of the Rule of Law are of particularly importance in the current situation. The first is that the exercise of public power must be authorised by law. This means that when the government decides to prohibit a certain activity (like selling non-essential goods), any prohibition must be authorised by specific legislation (or in the current case, regulations). In the case of the lockdown, this is done through the regulations promulgated in terms of the Disaster Management Act.

The second important aspect of the Rule of Law is that the law authorising the exercise of public power must be relatively clear. In the criminal law context this is referred to as the ius certum principle (the principle of certainty), which means that the crime must not, as formulated, be vague or unclear. Every person must be able to understand exactly what is expected of him or her. In other words, the definition of a crime should be reasonably precise and settled, so that people need not live in fear of breaking the law inadvertently.

In this sense, the Rule of Law provides important protection against arbitrary rule by cabinet ministers, government bureaucrat, and police officers. When the Rule of Law is respected, a citizen will not face arrest for doing something that is not prohibited by the law, just because a cabinet ministers, government bureaucrats or police officers decreed that it is prohibited.

When a cabinet minister decides that a certain activity is undesirable and announces that it is prohibited, despite the fact that the law does not prohibit it, he or she arrogates for him or herself the power to rule by decree. The same is true of a police officer who decides to arrest a person for something that the police officer frowns upon, but which is not prohibited by the law.

Similarly, where the legal rule is vague and it is impossible for a citizen to know with reasonable certainty what he or she is prohibited from doing, it creates a situation in which individual police officers and soldiers may make up the rules as they go along. When this happens, the rules are enforced in an arbitrary and unpredictable way, in the sense that one police officers will decide to arrest somebody for doing something that may or may not be a criminal offence, while another would not. Even citizens who try to abide by the rules may be arrested, not because they broke any rules but because an individual overzealous police officer has arbitrarily decided that a rule prohibits something.

In the current circumstances, where the stated aims of the lockdown are so clearly worthy of support, and the goodwill of the President and his most competent cabinet ministers not in doubt, it might be tempting to turn a blind eye to the erosion of the Rule of Law.

But this would be a mistake.

Respect for the Rule of Law – even during an extreme crisis like the one we are living through at the moment – protects citizens against arbitrary rule and the inevitable abuses that accompanies arbitrary rule.

Now, it is clear that in a constitutional democracy founded on the value of the Rule of Law, the mistaken claims by a minister that certain actions are prohibited, do not have any binding legal effect and cannot change the wording of the law. It is also clear that the arrest by the police officer for “infringing” on this imaginary breach of the law would be unlawful. But that does not immediately assist a citizen who is wrongly arrested by a police officer. While the victim will later be able to sue the government and while he or she will never be prosecuted successfully, he or she will not escape the consequences of an arrest.

There is an additional reasons why respect for the Rule of Law remains pivotal during the current crisis. The lockdown regulations are draconian in scope and effect. But the regulations do not affect everyone equally. While middle and upper middle class people with secure employment are being inconvenienced by the lockdown, the effect on financially insecure and destitute South Africans is clearly catastrophic.

At the best of times, this would make it difficult and even (on a personal level) undesirable for many South Africans to comply with all the regulations. But when the rules are arbitrarily enforced, and when individuals are arrested on the whims of individual police officers, it further erodes support for (and thus compliance with) the regulations. This will hamper the effectiveness of the effort to slow down or suppress the spread of Covid-19.

To make matters worse, the response of the law and order wing of the executive has been to encourage the police to arrest more people in a more heavy handed manner. It was reported over the weekend that more than 10 000 people have been arrested in KwaZulu-Natal alone for allegedly breaking some or other lockdown regulations. This is an astonishing figure. Moreover, while some regulations are being enforced vigorously, a blind eye seems to be turned about the flouting of other regulations – such as the ban on evictions.

All this reminds us again that the arbitrary interpretation and enforcement of legal rules have a disproportionate impact on the vulnerable and the marginalised, which is why respect for the Rule of Law is not a luxury, but a necessity.

Prof Pierre de Vos is the Claude Leon Foundation Chair in Constitutional Governance; Head: Department of Public Law in the Law Faculty of the University of Cape Town

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Canned wine? Why not?

Screenshot 2020-04-01 at 19.45.49
Pull the ring, then drink the thing

By John Fraser

They were more innocent times.  The dark clouds of the Chinese Pandemic, as Trump loves to call it, were just starting to waft their way towards us.

We still thought that Ramaphosa and his team were relatively benign, and had no idea that we had a police minister with a hint of the jackboot about him.

So we recorded a wine-tasting podcast, blindly oblivious to the prohibition to come for South Africa.  Take it as we meant it. A bit of fun…..

And let us hope that political diktats start to evaporate, that uncivil erosions of civil liberties are cast-aside, and that we can all return to relishing the wonders of the SA booze industry.

For our podcast, recorded pre-horror, we tried two cans of wine from Ben Wren.  His Red Blend and the Sauvignon Blanc.

There was a bit of confusion over price, but that just made it more enjoyable.

So turn your back to the current horrors, and take a listen.

I was joined by our Guru Michael Olivier, canny-with-a-can Scotsman Chris Gilmour, technical wizz-kid Malcolm MacDonald and the Sage himself: Jeremy (call me Jezza) Sampson.

Click below to travel back to a happier time…

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Do also check out:  http://www.michaelolivier.co.za

SA can export wine, Mr President. Now allow us to buy it.

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Grapes of joy

By John Fraser

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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Do some lockdown regulations clash with the Constitution?

constitution-of-south-africa
Are we fully protected by the Constitution?

By Professor Pierre de Vos

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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South Africa’s COVID-19 lockdown: cigarettes and outdoor exercise could ease the tension

There is no documented health benefit that warrants banning cigarette sales for 21 days.
Getty Images

Benjamin T H Smart, University of Johannesburg and Alex Broadbent, University of Johannesburg

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.

What is the lockdown in South Africa?

South African lockdown restrictions are among the most extreme globally. South Africans may not leave their homes except to procure essential goods and services. This excludes the purchase of cigarettes and alcohol. It also excludes outdoor exercise.

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 one thing to stay in a suburban house, with a nice garden for fresh air and sunshine. It is another to spend the day in a small shack with 10 other people, especially when only “an estimated 46.3% of households had access to piped water in their dwellings in 2018”.

Domestic violence, rape and child abuse are serious problems in South Africa. Most of these crimes are committed by people close to the victim. The lockdown measures are likely to place stress on abusers and make it hard for the abused to escape.

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.

Cigarettes as essential goods

Nicotine withdrawal causes bad temper, frustration, agitation, anxiety and mood swings. The damaging health effects of smoking are well established, but although early stages of lung-recovery are visible a full month after one stops smoking, there is no evidence suggesting that COVID-19 symptoms are alleviated by 21 days of abstinence.

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.

Outdoor exercise is essential

“No jogging. No dog walking. Stay inside.” That is the message from the government. This is a public health problem of note: exercise, even a small amount of it, is essential to stay healthy, especially for the elderly, and thus many of those most at risk from COVID-19.

Exercise, including mild exercise such as going for a walk, appears to alleviate or prevent depression.

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.

South African leaders should consider the full range of responses available to them, and assess the costs and benefits within their context. Regional quarantine arguably failed in Italy but was apparently more successful in China. South Africa was designed by the apartheid government to keep people apart.

What is to be done?

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.The Conversation

Benjamin T H Smart, Associate Professor, University of Johannesburg and Alex Broadbent, Director of the Institute for the Future of Knowledge and Professor of Philosophy, University of Johannesburg

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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