Davids expose Goliath as a surly bully
It was inevitable that the government would face court challenges to some, if not all, of the lockdown regulations imposed after the easing of the initial hard shutdown of the country. But what has been interesting is the way the government has handled them.
Council for the Advancement of the SA Constitution executive secretary Lawson Naidoo said it best when he described the government’s approach to the high court in Pretoria case over the invalidity of the level 4 and 3 lockdown regulations as “lackadaisical”.
Co-operative governance & traditional affairs minister Nkosazana Dlamini-Zuma was cited as the respondent in the matter, as the minister responsible for the Disaster Management Act and therefore the regulations. But instead of filing an affidavit in her own name, this task was given to the director-general of the department.
Judge Norman Davis referred to the affidavit as superficial at times and not engaging with the issues, and found that the majority of the regulations under levels 4 and 3 of the risk-adjusted strategy were invalid and unconstitutional. The challenge came from Reyno de Beer and his little-known organisation the Liberty Fighters Network, and it ended in a stunning David vs Goliath victory.
The court ordered that the government review and amend the regulations, and gave it 14 business days to do so, though for now the level 3 regulations remain in place.
There has been some criticism of the judgment, and the government announced on Thursday that it will appeal against the ruling. Constitutional law expert Pierre de Vos wrote in his blog Constitutionally Speaking that the appeal is likely to succeed.
But while the high court judgment may be flawed, so is the government’s handling of this and other challenges to its Covid-19 strategy.
Another example is the ban on the sale of tobacco products. Dlamini-Zuma missed a courtordered deadline to file an answer to the first big legal challenge to the measure. She had until the close of business on Wednesday to respond under oath to the challenge by the Fair Trade Independent
Tobacco Association (Fita) to the rationality of the ban, which is due to be heard in the high court next week. But the deadline went unheeded, without explanation or apology, and Fita considered pursuing her for contempt of court. It was after midnight that Dlamini-Zuma finally submitted her response.
The government has been trying hard to have this particular court challenge postponed, prompting questions about its reasoning for the ban and whether it does actually have a defence that would stand up in court. But what this all points to is that the government does not seem to be taking these challenges and concerns raised by citizens seriously. This could be perceived as a lack of respect for citizens and the judiciary, which is an integral part of our democracy as it is the guardian of our constitution.
What doesn’t seem to help either is the government’s “because I said so”-type response when questioned about the process followed to reach the decisions behind some of the regulations, and even in response to the court challenges. The government has just not been good enough at communicating its decision or explaining its regulations and the reasoning behind them.
Davis said in his judgment, “little or in fact no regard was given to the extent of the impact of individual regulations on the constitutional rights of people and whether the extent of the limitation of the rights was justifiable or not. The starting point was not ‘how can we as government limit constitutional rights in the least possible fashion whilst still protecting the inhabitants of SA?’ but rather ‘we will seek to achieve our goal by whatever means, irrespective of the cost and we will determine, albeit incrementally, which constitutional rights you as the people of SA may exercise’.”
His comments cut to the heart of the problem with the government’s response. This isn’t the time for it to become punch drunk on power, not if it wants to succeed in saving lives during the Covid-19 pandemic.
Just as it expects citizens to respect the rule of law, especially during this crisis, it needs to respect the people it serves, and that means taking concerns raised seriously, even if officials are convinced they made the right decision. If it had done this from the beginning, it might have avoided some of the court challenges.
We are not in a war, even though that phrase has been used more than once in the fight against Covid-19. Citizens are not enemies who need to be fought at every turn.
THE GOVERNMENT DOES NOT SEEM TO BE TAKING THESE CHALLENGES AND CONCERNS RAISED BY CITIZENS SERIOUSLY
THIS ISN’T THE TIME FOR IT TO BECOME PUNCH DRUNK ON POWER, NOT IF IT WANTS TO SUCCEED IN SAVING LIVES