Rule of law in South Africa should not be arbitrary
For the rule of law to function, people need to know what the law demands of them. Law needs to be certain, rational and respectable. If citizens are unable to tell whether they are breaking the law or not, the law is not functioning.
This applies to the Disaster Management Act.
When South Africa went into lockdown, it should have been crystal clear to the government whether people could go out of their homes to exercise or walk dogs. “Yes!” said Health Minister Mkhize. “No!” said Police Minister Cele, during the same public broadcast. Where did that leave us? Confused and cynical, and at risk of breaking the law by doing what ministers told us.
For the rule of law to function, its application should not be arbitrary.
Minister of Co-operative-Government Dlamini Zuma was charged by the act to make regulations to limit escalation of the pandemic and to minimise the effects of infection.
She purported to act accordingly when the sale of cigarettes was banned. Then came her legendary explanation that those who “zol” (smoke dagga cigarettes) use tobacco.
They share their “zol” and put saliva on it. Millions of cigarette smokers who do not “zol” were not connected to this justification. Nor was the sale of cigarettes to them. In any event, if Dlamini Zuma ever proves that smoking causes infection or spread of Covid-19, it is smoking which will need to be banned.
The ban on selling cigarettes has not prevented smokers from pursuing their habit.
Public respect has been undermined by such irrational government regulation.
For the rule of law to function, those enforcing must not become the enemies of the people.
Minister Cele has not allowed law to stand in the way of his displays of apartheid style “kragdadigheid”. He required people found in possession of cigarettes to discharge an onus of explaining where they bought them, and to produce receipts.
Yet possession is lawful and the Constitution vests people with rights of silence and presumption of innocence.
Cele proudly announced that by May 23 220 000 people had been charged under disaster regulations. Apparently, he saw the reduction of the prison population, aimed at preventing Covid-19 transmission, as an ideological challenge. In another context, the three-hour limit on exercise, Cele remarked that South Africans do not “deserve” this freedom.
Struggle stalwarts, and supporters of the Freedom Charter and Constitution, would disrespectfully disagree.
The Constitution demands that we should not be deprived of our freedom arbitrarily or without just cause. Where laws are made to limit our freedom under Covid-19, distinctions should be made between what helps fight the disease (or limits its damage) and what does not.
Online shopping creates little risk. Nevertheless, it was banned. Minister of Economic Affairs Patel attempted to justify this, claiming that online trading constituted unfair competition for spaza shops, informal traders and brick and mortar stores which were locked down.
That is not the issue. The real issue raised involves justifying limits on the freedom of each trader. Locking down risky trading was justified in the pandemic. The traders locked down were places where people gather and face risk. But the government was also legally bound to mitigate lockdown by allowing unharmful economic activities like online shopping.
Prohibiting food supermarkets from selling hot food also had little to do with fighting disease. No regulation prohibited them from doing so. After Minister Patel wrongly told reporters that a prohibition had always existed, Minister Dlamini-Zuma responded by updating the gazette with a banning order, apparently to level the playing fields with restaurants.
This law appeared to be derived from loosely spoken words at a press conference.
The circumstances above hardly inspire public confidence or respect.
One feels, as one did under apartheid, that we are living under the arbitrary and capricious rule of princes or despots. Supremacy of the rule of law, on which our democracy is founded, has been another casualty of Covid-19.
* Donen, SC, is a legal practitioner and listed counsel of the International Criminal Court.
* The views expressed here are not necessarily those of IOL.