Democratic institutions are the backbone of any prosperous country. Strong democratic institutions are needed to protect civil rights and political freedoms; these in turn ensure the economic freedom that makes nations prosper. A strong legal system and independent judiciary are such institutions — well-run courts and wise judges are the crowning jewels of any prosperous democracy.
However, even in the presence of these institutions, democracies will always remain under perpetual threat and even more so in times of crisis. The Covid-19 pandemic has offered stark reminders of this across the world.
When the pandemic landed on our shores, panic arose and citizens looked to the government for guidance. Many South Africans came together in solidarity and pledged their cooperation in order to slow the spread of the virus and look after the least well-off in our society. There was a wave of goodwill and patriotic collaboration.
This, however, ended as soon as the South African government, led by the African National Congress (ANC), made decisions that not only placed people’s lives at risk, but their livelihoods too.
Government established a central authority called the National Coronavirus Command Council which devised some of the most stringent and restrictive lockdown rules in the world. As arbitrary regulations were made — prohibiting e-commerce, for example, the most socially distanced of all shopping methods — questions around the council’s legitimacy in law began to arise.
Nobody knew who exactly constituted this mysterious body, what factors they were taking into account in their decision-making, and how they would be held accountable for their decisions. While laws the Council was making were some of the most freedom-limiting in South African history, none of the transparency and accountability mechanisms that apply to Parliament were in use.
At the moment that South Africans’ choice to exercise, and to buy cooked food, cigarettes, alcohol, open shoes and underwear was taken away — the moment when we most needed democratic oversight to protect our freedoms from arbitrary regulations — our government was acting less transparently than ever before. To make matters worse, many of these regulations made little sense, and no attempt was made by government to explain how they would help fight the spread of the disease.
Irrational laws are the foundation of authoritarianism
Edmund Burke once said that bad laws are the worst sort of tyranny. When governments make laws that contradict reason and the rule of law, they lay the groundwork for tyranny, authoritarianism, and state violence. It may not happen overnight, but bad laws lead a society steadily towards a state of oppression — unfortunately, it is usually easier to march forward rather than back.
An important lesson from Bastiat’s The Law is that when governments decide to pass and enact bad legislation, citizens can end up either disobeying the law or failing to differentiate between what type of law is justified and what is not.
In South Africa, over 300 000 people were arrested between April and August 2020, for exercising or swimming alone during incorrect hours, trading (even while taking health precautions), or being out alone past curfew. Some were shot and hundreds were physically assaulted or forced by the military to undergo humiliating punishments in the street. People were criminalised and punished for petty crimes that did not involve any risk of physical harm to others’ health.
The audacity to challenge government
Not everything embedded in law is right and deserves obedience. History bears witness to this. It is for this reason that we — eight young liberal South Africans — took legal action against our own government.
After we suffered defeat in the Cape High Court in a judgment that was described by some commentators as ‘sycophantic’ and a travesty, the Supreme Court of Appeal found in our favour on two major aspects of the lockdown laws. These were the laws on exercising and food sales during the ‘hard’ lockdown in the early stage of the pandemic.
The Court held that the Minister had no rational reason to restrict the type of exercise people could do, nor where and when. The same applied to the banning of hot food sales which was deemed ‘arbitrary in the extreme’ and therefore unconstitutional.
Some may argue that the court action was a petulant impulse, as evidence at the time was scarce and hence government deserved sympathy. But we all knew at the time that the laws were, frankly, crazy. Their effects have been dire too: millions of livelihoods were affected by these irrational laws, and many jobs were subsequently lost.
The findings of the court set an important precedent in South African administrative justice. All regulation-making, as a result of the ruling, will now be subject to the Promotion of Administrative Justice Act. This means that when the Executive makes regulations in the future, it will have to ensure that it adheres to rationality and procedural fairness, as well as making sure they are lawful. This is a big step forward for accountability, which has been sorely lacking under the governing party of the day.
A glimmer of hope for our democracy
The harsh lockdown, coupled with excessive police presence, brutality, and all-round lawlessness as a result of bad laws, injected a heavy sense of fear into many South Africans. We no longer feared the virus, but we feared the government using a global pandemic to enforce an authoritarian agenda on the population. This agenda ultimately included police brutality, theft of public funds meant to combat the pandemic, unlawful confiscation of people’s property and detrimental laws in Parliament, while many in the country wondered where their next meal would come from.
I do not foresee life in South Africa getting any better under the ANC. However, the Supreme Court judgment is a ray of hope that shows there is still scope to use our institutions such as the courts to fight for democracy and the rule of law. It is, after all, the role of the judiciary to shield us from authoritarianism and tyranny, and I am grateful that we as South Africans still have judges who are willing to take on this role.
The views of the writer are not necessarily the views of the Daily Friend or the IRR
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