Even in the absence of a formal State of Disaster, health minister Zweli Mkhize wants draconian powers to lock down society to curb the spread of notifiable diseases. And there’s nothing to stop him.

 ‘“Emergencies” have always been the pretext on which the safeguards of individual liberty have been eroded – and once they are suspended it is not difficult for anyone who has assumed such emergency powers to see to it that the emergency will persist.’

Thus wrote Friedrich Hayek in volume 3 of Law, Legislation, and Liberty. And as Ludwig von Mises has observed, governments never give up power voluntarily.

The African National Congress (ANC) has tasted dictatorial emergency powers, and it likes them. The very name of the National Coronavirus Command Council suggests that the party prefers to govern by command, rather than by consent.

So, with the prospect of an end to the formal State of Disaster upon us, health minister Zweli Mkhize has hatched a plan to assume command powers in perpetuity. He has published amendments to the Regulations Relating to the Surveillance and the Control of Notifiable Medical Conditions that would give him extensive powers to impose the kinds of restrictions with which lockdown has made us painfully familiar.

Under the amendments, he will be able to close businesses, impose curfews, and restrict the free movement of citizens at will, as long as the rules are related to managing and controlling the spread of a notifiable medical condition.

They also empower him to publish additional regulations not contemplated in the amendments, should he so desire, so renewed alcohol and tobacco bans are not out of the question. And, of course, the right to elevate a contagious disease to the status of notifiability also lies within the health minister’s purview.

Unchecked power

The National Health Act of 2003 empowers the minister, without any constraints other than consultation with a National Health Council which the minister chairs, to make regulations regarding communicable and notifiable diseases. He also needs to consult with cabinet ministers whose portfolios would be affected by the regulations. However, none of the lockdown powers Mkhize is claiming requires the assent of Parliament.

These draconian powers may be exercised without any oversight. There is no requirement in the regulations to consider the potential economic implications, the harm caused to livelihoods, or the consequences for civil liberties. There is no injunction to exercise these powers in a fair or reasonable manner and no call for rationality or proportionality. There is no limit to these powers, either in time or extent.

Even challenging them in court may prove difficult, given the low bar of the legal ‘rationality test’, under which the minister only needs to provide a reason and demonstrate that he considered his decision. The courts may not rule on whether that decision was rational in the sense that it was correct, given all the available evidence.

I was taken aback at how dramatically our rights could be curtailed merely under a State of Disaster, without even suspending the Constitution. Imagine my surprise when I discovered that the National Health Act empowers the health minister to make any regulations whatsoever in pursuit of their goals. The notion of ‘checks and balances’ seems to have fallen by the wayside a long time ago.

Powerless opposition

When Mkhize brought the amendments before Parliament’s Health Portfolio Committee – not as a legal requirement, but merely as a ‘courtesy’ – his own party heartily welcomed the new powers which he is about to bestow upon himself. Some opposition members objected, however.

‘The powers contemplated in these regulations are, in fact, emergency powers but without being of limited duration.’ ACDP MP Marie Sukers told Daily Maverick. ‘It would create an indefinite state of disaster at the discretion of the minister.’

‘Executive powers are very dicey at the best of times,’ DA MP Lindy Wilson told the paper. ‘So we are concerned. We cannot step on civil liberties.’

For all their objections, however, there is nothing the opposition Parliamentarians can do about it. They could try to amend the National Health Act to revoke the minister’s power to regulate without constraint, but that won’t happen without ANC Parliamentarians voting against their party line, which won’t happen when the ANC can simply drop them from the party list at the next election.

The totalitarian healthcare state

In my very first lockdown column, entitled How meekly and fearfully we march into totalitarianism, I asked the question: ‘Given that coronaviruses are not uncommon, and novel variants will continue to appear every few years – to say nothing of other disease epidemics – how can we trust that the totalitarian healthcare state will not become routine and normalised?’

Mkhize has answered that question now. No, we can’t. The totalitarian healthcare state will become routine and normalised, as I feared.

Standing regulations that can, at the whim of the health minister, close businesses and restrict the movement of citizens will add yet another major factor to the risk of doing business in South Africa.

If a restaurant owner cannot guarantee that their monthly revenue will be regular, why would a bank lend them money to expand their business? If a year’s profits could be wiped out by an unexpected lockdown whenever a new epidemic raises its head, why would anyone invest in South Africa?

Preserving the private sphere

Ultimately, these are infringements not only on civil liberties, but also on property rights. No doubt the minister would argue that lives are more important than property, but that would be to miss the point. Economic poverty comes with its own death toll, reducing life expectancy and making people more vulnerable to disease in the first place.

It is equally important, however, to resist the state’s encroachment upon private property and civil liberties. To quote the great Ludwig von Mises, from Liberalism: In the Classical Tradition:

‘All those in positions of political power, all governments, all kings, and all republican authorities have always looked askance at private property. There is an inherent tendency in all governmental power to recognize no restraints on its operation and to extend the sphere of its dominion as much as possible. To control everything, to leave no room for anything to happen of its own accord without the interference of the authorities – this is the goal for which every ruler secretly strives. If only private property did not stand in the way! Private property creates for the individual a sphere in which he is free of the state. It sets limits to the operation of the authoritarian will. It allows other forces to arise side by side with and in opposition to political power. It thus becomes the basis of all those activities that are free from violent interference on the part of the state. It is the soil in which the seeds of freedom are nurtured and in which the autonomy of the individual and ultimately all intellectual and material progress are rooted.’

It is critical to push back against the ever-greater thirst for power on the part of the ANC government. Countries prosper, by any measure you’d like to choose, in proportion to their economies’ freedom from government control and intrusion.

Not only that, but economies prosper merely by becoming more free, and wither merely by becoming less free, no matter their initial state. The latest Economic Freedom of the World report by the Fraser Institute offers a blueprint for national prosperity.

Mkhize’s regulations do exactly the opposite. They are anti-liberty and anti-growth. Instead of allowing the health minister to assume draconian new powers, we ought to drastically roll back the power of the state. Mkhize and his totalitarian ilk must be strongly resisted.

[Picture: wal_172619 from Pixabay]

The views of the writer are not necessarily the views of the Daily Friend or the IRR

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Ivo Vegter
Ivo Vegter is a freelance journalist, columnist and speaker who loves debunking myths and misconceptions, and addresses topics from the perspective of individual liberty and free markets. As an independent researcher, he is the author of the recent report from the Institute of Race Relations (IRR) – South Africa’s Minibus Taxi Industry, Resistance to Formalisation and Innovation – which assesses the potential for innovation and modernisation in this vital transport sector.

28 COMMENTS

  1. It is all written down in the NDR…some call it ‘state capture’, others ‘authoritative post modern Marxism’ others ‘black based cadre deployment’. Whatever the name, the outcome will surely be a state of failure.

    • Exactly – every single commentator,analyst/author, speaker etc says the same: we must resist, but nowhere are we given practical guidelines on how to do so…As for the courts, who will be willing to pay the huge legal fees knowing full well that the dice are stacked against him/her. Best bet: take Frans Cronje’s advice (if you can afford it!) – implement your own Plan B or leave

  2. This is terrifying to say the least. The author suggests that we must push back, but how, when even opposition parties are unable to do anything?

  3. I’ve given up Ivo.

    The trees will keep voting for the axe and they will get what they voted for.

    If you ideas on how to contribute to pushing back let me know.

  4. The size of the brains of most professional politicians is as large as a chicken’s…

    Why not let the people be? If you have warned people about a given threat you then leave them alone.
    If they are foolish they pay the price.

    The state does not have to ‘babysit’ its population. That is why we have Brains so as to think and the instinct to avoid danger.
    let people FREE….

    • The ‘people’ are Cyril’s ‘people’. They vote for and submit to, and will vote for and submit to the ANC until (as JZ states it) Jesus come home.
      Once you consider and accept this statement, then re-look your “let people free”…

    • No money in it. Just look at that skelem Juju. How does he pay for his lavish lifestyle ? Never contributed a positive thing in his entire miserable life, but he is a multimillionaire.

    • Politicians, mostly the failures in free society getting inti their positions by SweetTalkin (read BS) an electorate led by their noses by the media. And they love it to pass legislation on ant- and everything they no very little of, if anything at all. Then they sit back, have another drink and snacks/meal and think about a larger jacket to buy!
      All they need is a journo who wrote a convincing (to them) article of drivel and tears to some human being who ‘would not’ (reported as ‘could not’) fend for themselves. The journos usually quote some obscure ‘specialist’ in e.g. economic-, psychology-, medical-, or behaviour- ‘science’. None of these happen to be sciences in their own right. Pure science says that when a stone is dropped it will accelerate at 9,6m/s/s towards centre of the earth. These other disciplines are really, at best, only hypotheses.
      What is sad about this that they never recognise or admit responsibility for their actions when it inevitably lead to disaster. The outcomes are many, to name a few: lack of discipline and respect in schools, the forces, their elders etc. etc.

  5. By the time the majority “see” that we are living in a perpetual Naitonal State of Disaster with sweeping random lockdowns it will be too late.

    Most feel this will all blow over. LOL. This will not blow over we have arrived.

    They will continue to lockdown by province, city or business type all in the name of “a virus” “a outbreak” and we can expect to see massive economic damages occur.

    Do “they” care about economic downturns. NO.

    We are going to be in a perpetual National State of Disaster and experience lockdowns and socialist changes occur right before our eyes and do nothing because too many believe in the lies being perpetuated.

  6. We are almost in agreement. Nothing will stop them.
    No a concerted effort by the citizens will.
    We must simply start to refuse to accept these unjust laws, ignore and refuse to comply.
    That will happen when citizens lose respect for the law and constitution that does not protect their rights.

  7. Achtung, Achtung!
    This is your Fuhrer speaking.
    You must obey orders!

    Citizens has already lost all respect for the law & constitution especially when it comes to the state capture circus & Malema singing the EFF national anthem about ” kill the boer, kill the farmer.
    I sometimes wonder what our so called judges has to say for themselves. Shame?

    • It would appear that what they have to say for themselves is that the law by necessity is applied differently to different races. because racists.

  8. Our best hope is that the Health Minister and his government are as useless at implementing emergency powers as he is of running a state health care system. And as useless as he is in adhering to his own lockdown regulations of distancing/curfew/hand washing, but of course things like regulations and speed limits are only for other more common people. Or maybe he got infected by wearing open toed shoes, who knows or actually who really cares. So, the virus couldn’t have happened upon a more deserving spot, after all the havoc he and his cronies have managed to impose on our country. But it doesn’t help the rest of us and surely wont serve to show the rest of his gang that lockdown is something that doesn’t work. If they all got infected, these idiots probable response would be that lockdown gets more harshly imposed. After all, that’s what they do when all their other useless regulations don’t work.

  9. Is this the ‘freedom’ that those who were subjected to Apartheid restrictions fought for? I doubt it. This cannot be allowed to happen. Where are all the human rights associations/commissions etc? Where are the powerful opposition voices? Surely even the corporate media would believe this to be a transgression of our natural rights and the constitution?

  10. Back to the old problem John. The vast majority will always back the ANC . The vast majority do not have the foresight required to see where this will lead. All that is required to put the uneducated back on track should their attention to ANC ideology waver a bit, is to generate some incident involving those racist whites who want to return to the old Apartheid days.
    Their ability to relate bad legislation to investment ( what is thees investment you are talking) is next to….Well you get my drift!

    A huge number, probably the majority of black people reside outside the city & suburban areas where news, whether it be written, TV or radio is controlled by the ANC.
    In a population of +- 60,000,000 the chances of the population resisting any legislation is more than remote. And that’s before any intimidation or physical threats are used.

  11. ANC just want more control of the SA citizens. What is this guy smoking, does he want to destroy our economy ? I will not obey, sick and tired of these idiots

  12. The useless , incompetent , corrupt racist Anc government are slowly but surely pressing ahead to destroy our economy so that they can replace it with their ancient outdated failed socialist and communist ideology.They dont care two hoots about the economy or investors as the mentality and intellect is exactly the same as that of their comrade the late Robert Mugabe “As long as we have total draconian control over the people and there is enough money in the coffers to steal daily then the rest is irrelevant “It is mind boggling how oblivious people in South Africa are about the threat of total communism that awaits us .How we are going to oppose and fight this evil i dont know but i do hope someone out there will come up with a solution .Poverty , unemployment and misery like you have never seen before awaits us all when the Anc finally succeeds.

  13. WHO has issued a statement that lockdowns are ineffective. At the same time, I am fairly confident these aspirations are in breach of the Constitution that has been the brag of South African government for the last twenty six years and, as such, Mkhize would be opening himself up to legal action, probably in his personal capacity?
    There is growing opposition in many countries to this grab for power to take away the freedom of citizens.

  14. We inform them we just stop paying taxes until they “have their house in order”.
    En masse.
    We read the Government the Riot Act.

  15. Can Hoffman and the other constitutional specialists please advise? What can be done to stop this insanity in its tracks? The proposed changes are so broad, they could be used to trap citizens in SA permanently – especially the wealthy ones. They are already moving to trap their retirement pensions for 3 years….to start with. This is really dangerous. I think some person who knows how, should start crowd funding to collect money to hire the very best lawyers and advocates to fight this on behalf of the citizens.

    • That is a great idea. Certainly, our much vaunted constitution should be at least considered before sweeping and clearly unconstitutional measures are taken.

  16. The majority of comments reflect the lethargy of the country as a whole.
    Everybody is looking for, no longing for, someone (other than themselves) to come up with & implement a solution.
    The problems will not simply disappear! I don’t have a solution but I do know the root cause & it’s the root cause that is preventing any sort of plan being implemented. CATCH 22 springs to mind. We all know, but are fearful of even contemplating the actual solution.
    The best any NON ANC individuals can do is ensure your offspring understand that solutions that are acceptable will not be found in Africa!
    Plan accordingly. Not a very subtle way of saying get the hell out of there !

  17. What can we do? Informed citizens are sufficient in number to make a difference if only people would act together. In my view the only way to fight this is to fight the apathy and complacency of those informed citizens who should know better than to do nothing, and to bring pressure to bear on large corporations and big money which are in cahoots with government. We could make a difference if only there were some unity of purpose. The unity of thought exists. People are too wrapped up in their own money-making activities or afraid of their employers, under the delusion that they will escape the future the ANC-EFF mindset is imposing on us.

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