Acting judge says she won’t say sorry

An acting Johannesburg high court judge has agreed to step down from the bench after posting expletive-laden comments about “Cyril and his goons” on Facebook — in apparent criticism of the government’s recent shutdown measures.

The high court in Pretoria stated the obvious on Friday when it declared that people in SA have the right to life, dignity and not to be tortured during the lockdown the government ordered to curb the spread of the coronavirus.

Judge Hans Fabricius himself raised the oddity of what he was asked to do, saying the case was of an “unusual nature” as it was on a basic reading just asking him to restate existing law.

But what Fabricius did with the judgment was effectively pull the state up over its power trips on how members of the SA National Defence Force (SANDF), the SA Police Service and the metro police departments enforce the lockdown.

He ordered the ministers of police and defence to establish a mechanism within days to be used to investigate abuses by the security forces during the national state of disaster.

The executive was also ordered to develop and publish a code of conduct on operational procedures that will regulate the conduct of members of the police, SANDF and metro police in how they should give effect to the state of disaster.

The case has its genesis in the brutal death of Collins Khosa, a resident of Alexandra in Johannesburg, allegedly at the hands of SANDF members. Metro police officers allegedly watched as the assault took place.

While Fabricius did make orders particularly related to Khosa’s death, such as suspending the soldiers and officers who were at the scene on that fateful Good Friday, the case is about more than that — it is about the rights of all people in SA during the state of disaster.

Comments made by police minister Bheki Cele and defence minister Nosiviwe MapisaNqakula during the early days of the lockdown were repeated in the judgment to illustrate the type of rhetoric the security forces have heard. This included utterances that people in SA should not “provoke” the soldiers, that police should “push” them into their houses if they break the rules.

Mapisa-Nqakula said “there will be no skop, skiet and donder of civilians by the SANDF unless necessary to do so. For now we are a constitutional democracy.”

Fabricius said there is no moral equivalence between civilians disobeying soldiers and soldiers violating constitutional, international and statutory provisions with the excessive use of force.

The judgment is critical because it reaffirms the constitutional principle that not even in such exceptional circumstances can those rights be dispensed with. In the judgment Fabricius ventured onto the terrain of the social compact and how the government should be rational in the way it acts and in the laws it makes.

“The virus may well be contained (but not defeated until a vaccine is found), but what is the point if the result of harsh enforcement measures is a famine, an economic wasteland and the total loss of freedom, the right to dignity and the security of a person and, overall, the maintenance of the rule of law. The answer in my view is: there is no point,” he said.

He said if the government is held to its constitutional obligations, citizens’ trust is restored, lawful, rational regulations are obeyed, the expected flood of litigation will retreat and the spread of the virus will be contained until a vaccine is found.

COMMENTS MADE BY BHEKI CELE AND NOSIVIWE MAPISANQAKULA DURING THE EARLY DAYS OF THE LOCKDOWN WERE REPEATED