"The judgment of Hans Fabricius is also most frightening, because it demonstrates the impunity with which the security forces are operating, the lack of accountability ... And the necessity of challenging the constitutional validity of the Regulations." ... writes Tred MagillTuesday, May 26, 2020
The government response to the Covid-19 pandemic has been an unmitigated disaster and it's clear the 'lockdown' Regulations are neither rational nor constitutional.
Two months of lockdown has demonstrated itself to be impractical; and we've had to learn that lesson at the cost of what remained of our economy ... and the derogation of our fundamental democratic rights.
In summary, the government has demonstrated a cynical lack of faith in the people and responded with Regulations that a) 'lockdown' people to their homes, where social distancing is often impossible, b) prohibited them from going to work, thus destroying their livelihood and what was left of our economy, c) imposed exercise hours, a curfew and a bizarre hierarchy of 'essential' goods (including the prohibition of alcohol and tobacco, which stimulates illicit trade and denies the treasury of much needed taxes); all of which bear no rational, causal relationship to the spread of a virus ... and then borrowed money to put the country deeper in debt; money, I hasten to add, that is most likely to end up in political pockets.
Further to that, the South African Police Services (SAPS) has again demonstrated a lack of training, professionalism and understanding of the Constitution, by abusing, harassing or terrorising anyone who dares light a cigarette in their car or dares venture into the surf during 'exercise hours'. And the lockdown has been militarised by the deployment of the equally unprofessional South African National Defence Force (SANDF) which personnel are inclined to use extreme (if not lethal )force against anyone (like Collins Khoza) who dares challenge the assumed 'authority' they do not actually have ... in other words, the gross disregard for our Constitution and Bill of Rights.
And this to protect 'us' from a virus, which if left completely unchecked, is predicted to kill less than 1% of the population. The only perverted logic to this, has been the creation of a disaster which completely out-shadows the disaster it was supposed to mitigate.
Criticism has come from all sides, but the judgment of Judge Hans Fabricius, as he made Orders against the highest ranks of the Police and SANDF (Ministers Nosiviwe Mapisa-Nqakula and Bheki Cele) - in relation to the killing of Collins Khoza - is the most scathing.
The judgment is also the most frightening, because it demonstrates the impunity with which the security forces are operating, the lack of accountability ... and the necessity of challenging the constitutional validity of the Regulations. Although not asked to adjudicate the validity of the Regulations, the Judge made clear how a challenge to the Regulations might go:
The judge referred to the selection of 'essential' goods available for purchase as a 'seemingly irrational Regulation' and the lockdown 'pointless', if the result is "a famine, an economic wasteland and the total loss of freedom, the right to dignity and the security of the person and overall, the maintenance of the rule of law."
He went on to severely criticise the Minsters of Defence and the Police in terms that would justify their dismissal:
"In my view, it is the essence of the Bill of Rights and a court should not tolerate an infringement especially not by those that are created to protect the human dignity of citizens and all persons in this country. It is an ironic thought having regard to the history of this country that the very institutions that have been created to safeguard and protect the population from crime and violence, are the very persons who now fail to impose the appropriate internal remedies against the transgressors, but have the audacity to tell a court that it has no function in the matter and ought not even hear it."
He criticised comments made by Bheki Cele that SAPS would 'destroy the infrastructure where the liquor is sold', referring to the comment as 'unlawful' if literal and 'extremely irresponsible' if figurative (as was claimed by counsel for the Minister).
Judge Fabricius described the directive to SANDF personnel as "almost in the form of a military combat engagement against hostile forces".
"It defines the aim of the operation 'combat Coronovirus' against which they will engage in 'battle' until it is 'defeated and neutralised' ... The directive warns Charlie Company that the coronavirus 'moral is high as population of Alexandra don't care about measures in place'. It thus explicitly targeted the residents of Alexandra as threats or obstacles to the military objective."
".. what is even worse in this particular context is that Regulation 11E provides that 'no person is entitled to compensation for any loss or damage arising out of any act or omission by an enforcement officer under these Regulations'. This seems to offer a wholesale indemnity for law enforcement officials and adds to the already lacklustre response by the commanding officers to the increasing spate of the lockdown brutality."
"I agree with applicants' counsel that there is no existing mechanism capable of conducting prompt, impartial and effective investigations of lock-down brutality and that I have the duty and power to order the Defence Minister and the Police Minister to establish one urgently."
Now, two months into lockdown, I'm sitting here wondering - on the eve of Ramaphosa announcing the move from level 4 to level 3 on 1 June (still no tobacco sales permitted) - why are we still under lockdown? And why have these Regulations - being so obviously unconstitutional - not been challenged?
The BATSA threatened to take the matter to Court, but backed down. A group of lawyers led by Advocates Nazeer Cassim and Erin Richardson were also 'persuaded' to back down, allegedly by a chain of command that originated with Ramaphosa, channelled through Judge President Moegeng, down through the Law Society to the upstart advocates. And the Democratic Alliance (DA) certainly has made a lot of noise, but not much action.
Disconcerting .... because, the declaration of the 'disaster' also resulted in the formation of a National Command Council (NCC) and the suspension of Parliament ... thus no accountability or transparency of the NCC's inner workings. When asked for minutes of its meetings, those minutes have been denied. When asked for a committee to oversee the NCC, Speaker of the National Assembly, Thandi Modise, refused.
UCT Constitutional expert, Pierre de Vos describes how: "The president, Presidency, and various ministers have made directly contradictory statements about the powers and functions of the National Coronavirus Command Council, which may or may not be running South Africa. ... I have not been able to ascertain exactly who sits on the NCCC."
This is starting to sound too familiar ...
Anyone who remembers the emergency powers used by the Apartheid government to send the military to lockdown suburbs, quell 'social unrest' (mostly peaceful protests), will remember that our distrust was based on the observation (revealed as fact) that the authorities used 'public order' or the 'maintenance of law and order' ... as a disguise for another, self-serving and ulterior motive - to suppress opposition.
That might appear 'alarmist' to some, but let's look at where we've come from.
Eight years of State capture.... an estimated R1Trillion embezzled from the State ... with relative impunity.
Yes, Jacob Zuma might still have his day in court, but how did he evade justice for so long? The essence of his survival was the corruption and capture of the State criminal investigation and prosecuting authorities.
Remember also that the Constitutional Court ruled that Jacob Zuma "failed to uphold, defend and respect the constitution" ... yet he remained. ANC Parliamentarians shook their heads disapprovingly, but resisted all pressure to have him removed from office.
The problem we face is the very same conundrum that protected Zuma - the ANC closes ranks and defends its own, above the Constitution ... come what may! The ANC has itself been captured, in a web of its own making; complicit by its silence in the face of the most obvious of transgressions - a gross failure of accountability, both individual and collective.
Ramaphosa might talk tough about corruption, but what did he have to say while deputy to Zuma? Who stood either side of him, after ousting Dlamini-Zuma for the ANC presidency? ... Yes, two of the most allegedly corrupt politicians and subjects of the books, Ganger State and Eerie Assignment - Ace Magashule and David Mabuza; now Secretary-General of the ANC and Vice-President of South Africa, respectively.
Anyone who thinks Ramaphosa is the 'arch Constitutionalist' who would defend the very Constitution that he negotiated, would be naive. In what sense is he a constitutionalist if he doesn't simply say in those NCC meetings: "I won't do that - it's unconstitutional."
Given this track-record, and even if it is not the case, we must assume the worst and consider the lack of transparency from the NCC and the obstructive response of the Speaker of the National Assembly, as deliberate obfuscation, for the purposes of maintaining an ambiguous agenda with both overt and covert objectives; and to evade accountability while doing so.
Lockdown denies us some of our most basic rights - the right to move around, to congregate and to protest. If we are subject to lockdown and do not consent, how are we supposed to protest? Judge Fabricius has spelled it out, clearly - the security forces are operating with impunity and there is no mechanism to hold them accountable. Whatever they do, the response of the relevant Ministers will be illuminating.
But in any case, this is too dangerous a precedent to permit.
At this time, we do not have a State willing or able to hold the security forces to account; and we also do not have Parliamentary oversight. What we have left is the judiciary; so perhaps (for future reference), at times like these, it should be required that all regulations drafted under 'emergency' powers, are automatically reviewed by our highest courts before being enforceable.
What we need NOW is that these regulations be challenged and that the Courts make a ruling on their Constitutionality. The ruling itself, is unlikely to surprise - what will be of paramount significance, is the NCC response. Will they concede and reform, or do we find ourselves moving closer to a police state? - (288)