A non-negotiable right

Sometimes, inequality is loud. Sometimes, it kicks and screams and demands attention. But, more often, inequality is quiet. More often, it treads softly in the shadows. And that’s where it thrives and festers into something even more insidious.

The right to equality is one of the most fundamental. It is an enabling right, a precondition for the realisation of other rights.

There are times when certain rights can and should be limited.

Like during a state of disaster.

But the right to equality isn’t one of those. The right to equality – which provides that everyone is equal before the law and has the right to equal protection and benefit of the law – is a non-derogable right.

Not even in the face of a global pandemic can, or should, the right to equality be compromised. Theoretically.

South Africa is one of the most unequal countries in the world and it has been for a long time, but the Covid-19 pandemic has further deepened the already gaping chasm that divides the privileged and the not-so-privileged.

Case in point: Justice Shabangu and George Mphotshe. As waste pickers, when the lockdown took effect, the two men were stripped of their only means of making an income.

Driven to desperation, in early April they broke the lockdown rules and ventured out into the streets to try and collect recyclables they could trade for money for food. They were arrested and charged. And then they were locked up for three months.

At about the same time Shabangu and Mphotshe were arrested, another lockdown defier was making headlines: Stella Ndabeni-Abrahams, the minister of communications, telecommunications and postal services. A photo of Ndabeni-Abrahams and the former deputy minister of higher education, Mduduzi Manana, having lunch together at the latter’s home found its way onto social media and quickly went viral.

Her penance? She was made to pay a R1 000 admission of guilt fine, suspended for two months (one unpaid) and had to make a public apology.

It’s not that Ndabeni-Abrahams got off lightly. It could be argued she did but, in the eyes of the law, her punishment fits her crime.

No, it’s that Shabangu and Mphotshe didn’t get off lightly. And they should have. Their punishment did not fit their crime.

You don’t have to agree with the lockdown regulations but you do have to follow them because they represent something much bigger: the rule of law.

And when we begin picking and choosing when the rule of law matters and when it doesn’t, we start down a slippery slope.

But the regulations have made life hard and they’ve created grey areas.

The system acknowledges that and it provides for a measure of mercy for ordinary people still learning their way around the new world that Covid-19 brought with it.

Ndabeni-Abrahams was afforded that mercy when she found herself on the wrong side of the regulations but, somehow, Shabangu and Mphotshe were not.

The system failed them.

It took three months and, in the end, a high court order to release Shabangu and Mphotshe.

Because sometimes inequality is loud. Sometimes it kicks and screams and demands attention. But, more often, inequality is quiet. More often it treads softly in the shadows. And that’s where it thrives and festers into something even more insidious.

When we begin picking and choosing when the rule of law matters and when it doesn’t, we start down a slippery slope.