Judgment confirms disconnect between rules and our rights

THE judgment handed down by the Pretoria High Court declaring certain, but not all regulations, promulgated by the National Coronavirus Comman Council (NCC) through Minister Nkosazana Dlamini Zuma, as invalid confirms what I have been consistently saying – that is there is gross disconnect between regulations passed by a body which has no constitutionally mandated standing and the rights of individual South Africans guaranteed in the Bill of Rights.

One of the absurdities or irrationalities that the learned Judge Norman Davis pointed out is that people dying or seriously ill are not permitted visitors, but when they die 50 or fewer people may attend the funeral. Another is that we are permitted to walk, jog and train along the promenade but we cannot swim or dip our legs in the sea. The learned judge inferred that once the minister had declared a national state of disaster and once the goal was to “flatten the curve” by way of retarding or limiting the spread of the virus was attained (commendable and necessary objectives), “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 to their rights was justifiable.”

As I read and re-read aspects of the judgment and the fact that the court ordered the state to pay costs, it informs me that (the State) had made a pathetic attempt to defend the charges against it. The minister herself seemed to treat the constitutional challenges with a sense of disdain.

She seemed to show little concern about the extent of the impact of individual regulations on the constitutional rights of people and whether the extent of the limitations on their rights was justifiable or not.

The starting point, as the learned judge pointed out, was not: “How can we as government limit constitutional rights in the least possible fashion while still protecting the inhabitants of South Africa?” 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 we as the people of South Africa, may exercise.

I make the final point referred to in the judgment. It relates to whether the NCC, which has no constitutional standing, can act as it does without supervision of Parliament and the National Council of Provinces.

The judgment doesn’t address that as there are challenges to the very legality of the NCC and whether or not it can operate and function without parliamentary oversight.

This judgment provides a ripple of hope, just like someone who throws a stone in the water and it creates a ripple, but most importantly it shows that we, as a constitutional democracy have a robustly impartial judiciary with capacity to tell government that it has overstepped the boundaries of the Constitution.

SABER AHMED JAZBHAY | Newlands West