Long may courts continue to watch citizens’ backs

The epidemiologist at the helm of the government’s campaign against coronavirus, Dr Salim Abdool Salim, made a profound comment recently, when he said that trying to manage this unprecedented, “black swan” crisis was like trying to sail a boat at the same time you’re building it.

That does neatly sum up the reality that there are no previous experiences from which to learn when it comes to this pandemic.

There are no textbooks or manuals about totally closing down a country to prevent the spread of an infection.

And, in many respects, the government and its experts (like Salim) will be criticised, whatever they do. They do not have an enviable task.

However, having said that, it is also apparent that the government has done many things incorrectly, hastily and without logic.

Even more obvious is the fact that South African citizens have had their basic human rights infringed, to a degree, by the lockdown regulations.

So, it is comforting to know that our judicial system has proved to be a societal safety net which still works – and prevents all of us from being abused by capricious politicians, civil servants, cops and soldiers.

There have been two significant court cases this week which have hit at the heart of some of the restrictions, which were imposed by President Cyril Ramaphosa in March, in terms of the Disaster Management Act.

The first was on Tuesday, when High Court in Pretoria judge Norman Davis ruled that the Level 4 and Level 3 lockdown regulations were illegal on the basis that they were unconstitutional.

However, the restrictions remain in force to allow the authorities 14 days to respond, to appeal the judgment or to amend the regulations.

Although legal experts say the judgment by Davis is still a long way from scrapping the regulations – and may well be overturned by a higher court – the result proves not only that our courts are prepared to hear such cases, but are prepared to issue judgments which will not sit well with the government.

And then yesterday, AfriForum won a significant victory for the basic human right to freedom of movement when the Northern Gauteng High Court ordered that a person who tests positive for Covid-19 cannot be forced into a state quarantine facility if that person is able to “self-isolate”.

Taken together, the court rulings mark, apart from anything else, a significant message to the government that it will have to take much more care in future in drafting rules to curtail our freedoms and will have to provide rational reasons for imposing such restrictions.

Still pending is a court decision on whether the government was acting rationally, or legally, in banning the sale of cigarettes and tobacco products right across all levels of lockdown so far.

In all matters before the courts, those bringing the actions are arguing that the government has acted irrationally, while the government’s response has been, effectively, that when it comes to a national health crisis of such a significant nature, then the end justifies the means.

It is that latter contention – that to make an omelette, you have to crack some eggs – which is most worrying for our future as citizens with basic freedoms.

Long may our courts continue to watch our backs.