Jurists in call for clarity on lockdown rules

THE LOCKDOWN and its relaxation, which began on May 1, has precipitated a controversy in relation to the National Command Council (NCC) and the nature of the regulations instituted by virtue of it.

In relation to the NCC, it has been reported that two eminent advocates, Naseer Cassim SC and Erin Richards have penned a letter to President Cyril Ramaphosa seeking constitutional and legal clarity and explanation on the structure and powers of this body.

In their letter, they express concern over the “possible risks of constitutional and democratic malfunctions arising from what appears to be questionable establishment, structure and functions of the NCC, as well as noticeable lack of transparency from government about the body”.

The two jurists ask the president to clarify the legislative or other basis for the establishment of the NCC and extent of its powers.

Further, they indicate in their letter that it appears to be displacing the constitutional and statutory functions under the Disaster Management Act (DMA) 57 of 2002, thereby compromising parliamentary oversight that could give rise to potential unchecked abuses and excesses of state power.

One of the consequences of this is that it has thrown the “parliamentary oversight mechanisms into chaos because it interrupts the ordinary functioning of portfolios and their committees”. In this regard they ask for certain information and explanation, failing which after consulting ethical bodies, they will consider potential litigation.

Regarding the issue of parliamentary oversight, the interim leader of the DA, John Steenhuisen, asked that the National Assembly (NA) establish an ad hoc committee to oversee the Cabinet and other state organs during the Covid-19 lockdown. Unfortunately, this was turned down by the Deputy Speaker, Lechesa Tsenoli.

There is also a controversy relating to rules involved with the relaxation of the lockdown. Some of these appear to be arbitrary and the consequences of which have not been thought through.

It has been suggested in an article on the internet by Michalsons (practical legal solutions) that principle-based regulations should be used rather than merely hard and fast rules.

By analogy, they refer to data protection laws which are principle-based. They illustrate the merit of a principle-based approach by giving two examples set out below:

● You shall only run-walk or cycle between 6am and 9am.

● You shall at all times wear a face mask.

These are hard and fast rules. In their place they suggest the following:

● You may exercise when you have to, but keep a safe physical distance from other people, do it in uncrowded places and don’t touch surfaces.

● Wear a face mask if you will come near other people.

These are not hard and fast rules and give people discretion. South Africa is a vibrant constitutional democracy which continues to operate during the crisis caused by the coronavirus.

It is therefore important that the government realises this fully, bearing in mind that the cost of liberty is eternal vigilance and that justice must not only be done, but must manifestly be seen to be done.