Readiness for responsibility

The courts have been flooded with challenges to government’s response to the Covid-19 pandemic since the state of disaster was declared in March.

When he delivered the judgment everyone has been talking about this week, Justice Norman Davis spoke about the consequences of invoking a national state of disaster and how important scrutiny is right now.

The group which brought the case to court and got the lockdown regulations declared unconstitutional and invalid had argued that the regulations were unlawful because, according to the Disaster Management Act, regulations made by the minister should be approved by the National Council of Provinces (NCOP) first. The lockdown regulations weren’t.

Despite the order he ended up handing down, the judge found that not all regulations under the Act have to be approved by the NCOP and that if regulations that were urgent in nature – in particular – first had to go through the NCOP, it could frustrate the process.

But he also said this highlighted how invoking a state of disaster “places the power to promulgate and direct substantial [if not virtually all] aspects of everyday life of the people of South Africa in the hands of a single minister with little or none of the customary parliamentary, provincial or other oversight functions provided for in the constitution in place”.

He said, as a result, the exercise of functions should be closely scrutinised “to ensure the legality and constitutional compliance thereof”.

Doubts have been raised around whether or not the judgment would withstand an appeal, but the general consensus is that at the very least, it brings to the fore some important questions and issues.

And this is one of them.

These are, indeed, extraordinary times. Over the course of the past few months, life as we know it has changed in a dramatic and far-reaching way. And it continues to change. But even through change, we must be guided by the constitution and actively protect the hardwon rights enshrined therein.

That does not mean there are not instances – like during a state of disaster – where those rights cannot or should not be limited in the name of the greater good. Much has been said about the delicate balancing act that must be achieved when weighing rights up against one another.

But when it is necessary to limit our rights, government has a duty to do it in the least invasive way possible to achieve its outcome.

And in the absence of most – if not all – of the oversight mechanisms that we might ordinarily rely on as safeguards we, as a collective, need to hold government to account to that duty.

The courts have been flooded with challenges to government’s response to the Covid-19 pandemic since the state of disaster was declared in March. Some were launched by prominent civil society groups and political parties, others by lesser-known organisations and others, still, by citizens acting in their personal capacities.

Some were more successful than others. But, encouraging is that so many took up the fight.

Whether the courts agreed with them or not, that they saw what they at least perceived to be injustice and acted. It bodes well for our nation.

After all, as Dietrich Bonhoeffer, Lutheran pastor, theologian and anti-Nazi dissident said: “Action springs not from thought, but from a readiness for responsibility.”