Over the past six (6) weeks our entire nation and indeed the world, has undergone a dramatic change. Make no mistake, the Covid-19 or Novel Coronavirus Pandemic has changed all of our lives dramatically. There are several legal discussions, and debates as to whether or not, the action taken by the various countries in dealing with the threat ought to have been undertaken. At first South African’s rallied behind their commander-in-chief. President Ramaphosa, was a beacon of light to all South African’s, and although some of us may not have immediately agreed with the procedures put in place, each South African, at least initially, bought into the process, and complied.

The process was lengthened from an initial three (3) week hard lockdown to five (5) weeks. Then came the implementation of the alert levels, (which essentially changed nothing for the ordinary man on the street) for a further period. Make no mistake the people have started questioning the decisions of the Government and South African’s are starting to whisper descent. The Government is facing several legal battles which are based on commercial aspects of reopening commerce as well as on socioeconomic considerations such as the poor and the very real threat, that the reaction to the threat has in fact been more disastrous than the threat could or may be.

This reaction to start questioning decisions made for us, is entirely reasonable. Especially when people are watching seemingly helpless, as their livelihoods, which they have all worked so hard for are lost, all the while having no cogent reason for the continued measures being implemented and enforced somewhat militantly.

We are all guilty of looking for justification. We are all trying to understand this situation and we question whether or not the procedure adopted in order to facilitate the lockdown was in fact done so by the letter of the law, or was it even necessary?

In going through the same motions as all persons are, I have come across several opinions and points of view. As a rule, I ignore the conspiracy theorists and look to the more rational academic point of view. The two most compelling outlooks I found came from two people who I greatly admire. I thought that perhaps our readers may be equally intrigued by the contents of the articles which I have chosen to share.

Retired Judge Rex Van Schalkwyk has been quite outspoken and has become quite well known for his provocative but reasonable approach to several issues in our country. He is a retired SCA Judge who previously serviced the Transvaal Provincial Division and has written a book entitled “One Miracle Is Not Enough”. He is currently the Chairman of the Rule of Law Board of Advisors and is one of the persons I would look to for some clarity on legal issues. I found his article to be quite informative and I hope you do too.

Lockdown, Tyranny, and the Rule of Law in South Africa

By Rex van Schalkwyk

House arrest is a recognised form of punishment for a convicted criminal. The punishment can, however, only legitimately be imposed upon an individual who has had the benefit of a fair trial. What then of the house arrest to which the entire population has been subjected for the past several weeks? The answer, of course, is that it is done for a legitimate purpose. To establish this, the reasons must be examined to determine their legitimacy, failing which the lockdown remains illegitimate, and therefore tyrannical. What the law will not tolerate is the whimsical or capricious use of power to undermine the liberty of the citizen, or merely to flex the collective muscle of the executive, who are, under the leadership of the president, responsible for the decisions taken.

The rule of law is the barrier that the law sets against tyranny. The legitimacy, or otherwise, of the lockdown must be determined in accordance with the prescriptions of the rule of law. An object lesson derived from the rule of law is that the free individual may do anything that is not prohibited, but that the state (the agency of law enforcement) may do nothing that is not permitted. The permission that the state requires is the permission that is conferred by the law. Of course, the law may not be perverted by the lawmaker in such a way as to permit a state action that violates the fundamental authority of the rule of law.

It follows axiomatically that any attempt by the lawmaker to subvert the rule of law is illegitimate and therefore unlawful.

To accord with these principles, it is evident that any restrictions placed upon individual liberty by the lockdown measures must be reasonably capable of achieving their objective, and that the objective must itself be rational to its purpose. There are, broadly, three purposes to be served. The first is the overriding one that the liberty of the individual must be preserved, to the extent that this is not incompatible with the overall objectives sought; the second is that the measures must be demonstrably capable of ameliorating the incidence and the likely duration of the Covid-19 virus; and the third is that a sensible cost/benefit analysis should yield a clear, though not necessarily decisive, answer in favour of the measures instituted.

Sweden, a country of some 10 million inhabitants, has selected the course of voluntarism. Individuals may self-isolate if they choose. The death rate there, compared to other countries that have imposed lockdown measures, is not materially different.

The second of these requirements is problematic because the event that is confronted has some unknown qualities, and its likely impact (both short- and long-term) are unpredictable. For these reasons some latitude must be allowed in the application of this requirement but this comes with an important caveat: as soon as dependable medical or empirical evidence emerges that the methods employed are either excessive, or unnecessary, the process must be checked and, if so indicated, reversed. Such evidence has now emerged.

The assessed, and sometimes predicted death-rate from the Covid-19 virus, derived from countries like Italy and the United States, was variously estimated at between 10 and 14%. It has now been conclusively demonstrated that these projections are false. In both cases, and many others, the infection rate (the denominator of the calculation) took account of only those symptomatic cases which had tested positive for the Covid-19 virus. Subsequent tests in various countries have demonstrated a statistical probability of a 4% infection rate within the broader community, who are asymptomatic. (The virus does not necessarily manifest any symptoms at all).

This crucial fact gives rise to a much larger denominator in every case that may be evaluated. The result of the significantly larger number of infected persons than previously thought is that the death rate remaining the same, the proportion of deaths to infections is a minuscule proportion of what was previously predicted – somewhere below 0.5%.

This information has been examined by statisticians and respected epidemiologists, and the conclusion is that the death rate from the Covid-19 virus is no more severe than the seasonal flu.

Then there is the empirical evidence. Sweden, a country of some 10 million inhabitants, has selected the course of voluntarism. Individuals may self-isolate if they choose. The death rate there, compared to other countries that have imposed lockdown measures, is not materially different.

These are vitally important facts and must be considered in any decision to extend, or to make more onerous, the already onerous restrictions imposed. In this regard the imposition of a military-style curfew, to be imposed with the supposed relaxation of the restrictions in phase 4, do not bear serious consideration.

It need hardly be said that some of the restrictions, in place for several weeks now, do not bear critical scrutiny. To the question, what purpose is served by banning alcohol and cigarette sales during the period of the lockdown? The Minister of Police answers that there have been far fewer murders committed during this period (and that perhaps permanent abolition should be implemented). This demonstrates the shallowness and indeed the absence of thought on this, and similar issues. The welcome reduction in the murder rate is far more probably the result of the fact that people are locked down. Does this mean that the lockdown should be made permanent? The alternative answer, that critical hospital beds may be wasted on patients with alcohol related illness is equally facile because there continues to be an oversupply of unused hospital beds. Moreover, a reduction in the murder rate bears no rational relationship to the professed purpose of the lockdown, which is to overcome the threat posed by the virus.

The cost of the lockdown is incalculable, both in material and in human terms. This conclusion is so self-evident that it requires no analysis.

What then is the purpose of this excessive venture into the gratuitous exercise of state authority. For the first time in peacetime, for the employment of the military, to ensure the obedience of the civilian population; of the authority involuntarily to detain and medically treat those who, upon random testing, should have the misfortune of a positive reading; of the power of the authorities to detain those who refuse the enforced treatment; of the encouragement of neighbours reporting on neighbours (and children on parents?) and of a growing authoritarianism with striking similarities to the most egregious regimes of the previous tragic century. What is the purpose?

The purpose cannot logically be the complete undoing of a national/international threat because the best method by which that result may be achieved is the exposure to those least vulnerable (the youth) to a harmless infection, so that herd immunity can be initiated and eventually spread to the population. This is not achieved by lockdowns. And why is the body comprised of the individuals that largely determines the fate of this process called by the militaristic, Coronavirus Command Council.

This entire venture has far too many militaristic and authoritarian characteristics, of which warning is being given to those who will pay attention to recent history.

              • Rex Van Schalkwyk

 

The second article was an interview with our very esteemed Chief Justice Mogoeng Mogoeng. For those who are not aware Mogoeng Mogoeng was appointed to the Constitutional Court of the Republic of South Africa in 2009 and subsequently elevated to the position of Chief Justice of the Republic of South Africa on 08 September 2011. In that capacity, he leads both the Constitutional Court and the Judiciary. He also Chairs the Judicial Service Commission, the South African Judicial Education Institute as well as the National Efficiency Committee.

Our Chief Justice does not offer up interviews regularly and his views expressed were very thought provoking. If the Chief Justice of the Highest Court of our Land is willing to speak out, we all need to listen.

 

‘I am deeply worried’ about impact of Covid-19 on SA – Chief Justice Mogoeng’

An article Published by News 24

Chief Justice Mogoeng Mogoeng says the lockdown and state of national disaster implemented to curb the spread of the coronavirus cannot function above the Constitution.

The head of the judiciary spoke to News24 this week from under a tree on his farm, where he encouraged citizens to challenge government decisions, they deem to be infringing their rights.

“Even a constitutionalist function[ing] state of emergency is subject to constitutional review. The courts have a final say on the validity or otherwise on measures taken in a state of emergency. Our constitutional rights are crucial and there can never be a situation [where] any of us are not subject to constitutional review,” he said.

Mogoeng said this was why he did not agree with the view that courts should have been shut down during the early phase of the nationwide lockdown because people should have the option to challenge any violation of their rights during this period.

“I encourage every citizen who believes his or her rights have been infringed to, without hesitation, approach our courts, so the courts – that are constitutionally ordained to look into the constitutionality of acts or conduct of anyone – can review the matter and decide whether or not citizens have been wronged or citizens have been acting under an incorrect understanding of what the position is,” he said.

Earlier this week, President Cyril Ramaphosa said in his weekly newsletter that every citizen has the right to challenge government’s regulations in court.

Mogoeng said while he does not align himself with the president, he has long maintained that citizens must rely on the courts if they believed government was infringing their rights.

‘Situation in SA ‘deeply concerning’

The chief justice said the rising cases of coronavirus in the country and the economic impact were “deeply concerning” to him.

“I am deeply worried,” Mogoeng said, reflecting on the impact Covid-19 has had not only on the judiciary, but on the entire country.

Mogoeng said Covid-19 and the related lockdown have made a bad situation worse in the judiciary, with cases piling up.

Had South Africa’s courts been modernized much earlier, he said, virtual court proceedings would not be a foreign concept that was being resisted from some quarters.

“The first challenge, speaking for the judiciary, is that we haven’t been able to finalize cases as expeditiously as we would want to, as expeditiously as the public is entitled to have us do. The effect of Covid-19 has been to make the situation worse for the judiciary and for the broader public,” Mogoeng said.

While there was an effort to have matters heard virtually, some lawyers have rebuffed the idea.

“You risk people saying, if they don’t succeed, you risk people saying I did not succeed because I was compelled by the court to present my cases under most unusual circumstances,” Mogoeng said.

 ‘Pushing for modernization of courts’

He said for many years he has been pushing for a court modernization along the lines of the SA Revenue Service (SARS).

“But you need funding to be able to do that. As you know, the public purse is highly challenged. There are so many key areas competing for the limited resources,” Mogoeng said.

The chief justice said the lockdown has exacerbated the problem of backlogs in courts, that was already a serious concern.

“And the challenge is we really aren’t able to plan effectively around the lockdown because we don’t even know when it’s going to end. We don’t know when phase two is going to kick in, Level 3. And how long that is going to allow the courts to function particularly where it matters the most, at the magistrate’s courts and the high court and the courts of equivalent status,” he said.

Mogoeng said courts would have to prioritize cases impacting the economy and gender-based violence.

‘Courts don’t function alone’

But he said the biggest concern in the criminal justice system was that courts don’t function alone.

“You got a number of other key stakeholders involved, like the police. Police must have their act in order in relation to criminal matters, the prosecuting authority, witnesses, and the legal representatives, some provided by Legal Aid SA, others funded by themselves.”

Away from the judiciary, Mogoeng’s concerns extend further.

“I am worried about the impact of our inability to function as normal on the economy. ”

“I am worried about our inability to function normally and the impact thereof on crime.”

 ‘Worried about spike in crime’

Mogoeng said he was worried that mass unemployment may lead to a spike in crime.

“What will happen to the multitudes who will not have a source of income? Isn’t it likely to contribute to the already more concerning level of crime that we had to contend with so far as a society?”

But there’s a silver lining too, he said.

“This lockdown has given us an opportunity to reflect on how materialistic we are at times and how much need there is out there. The need that must not be theorized about… the need that must not be intellectualized about. But the need that cries out for practical steps [which] should be taken by each citizen who has something to share,” he said.

The chief justice relayed how domestic workers employed to assist with looking after his aged mother had proposed that parts of their salaries be contributed towards the gardener who was at risk of losing his income.

He said the lockdown showed practical examples of ubuntu.

                    • News 24

 

It is somewhat comforting that even the most well-respected legists are questioning the decisions that have been taken for us, and although Lister & Company, do not necessarily share each and every sentiment contained in the articles they certainly provide food for thought.

Only time will tell and we are certain, that there will be several more legal challenges levelled against the lockdown and the processes that underpinned same.

 

 

Garry Bell

LISTER & COMPANY

In terms of the Government Gazette Vol:657 Dated 26 March 2020 No 43164 - Information regarding COVID19 can be found at HERE