We need to remember that rules have to be reasonable – in the court of public opinion too
Financial Mail 04 June 2020
Dear President Ramaphosa, I hope this letter finds you well, as you help SA navigate Covid-19 and the unintended social impact of the policies you and your colleagues designed to contain the virus. We appreciate your efforts and the goodwill underpinning them.
In Antoine de Saint-Exupéry’s classic The Little Prince, the prince narrates the story of a king he met on a tiny planet far away. Speaking of authority and public obedience, the king opined: “Authority rests first of all on reason. If you command your subjects to go and throw themselves into the sea, there will be a revolution. I have a right to demand obedience because my orders are reasonable.”
Can our government demand obedience in respect of Covid-19 regulations on these grounds?
There wasn’t a murmur of dissent as you announced a 21-day lockdown. Even though we knew some businesses, particularly informal businesses, might not survive, we knew the sacrifice had to be made.
The idea was to achieve physical distancing that would limit transmission, thus avoiding unmanageable demand for our limited health facilities, including hospital beds and ventilators. Our medical services needed time to prepare, and obtain adequate personnel protective equipment.
At the time, nobody asked questions about reasonableness or legality; the need was self-evident.
The trouble started, Mr President, when you announced an indefinite extension of the lockdown, with the promised sweetener of a gradual relaxation of the restrictions on movement and commerce. This led to questions about whether the draconian restrictions, which devastated the economy and social wellbeing, were the best options the government had.
It seems to me that the two key challenges to the lockdown are social justice and reasonableness — which are both protected in the constitution.
In our previous communication with you, Mr President, we reminded you that all policies, including the Covid-19 regulations, must comply with the constitution’s equality clause and, by implication, the dictates of social justice. The constitution requires that no section of society should be unjustly and unfairly excluded from opportunities, resources, benefits and privileges. No group should bear a disproportionate burden under the Covid-19 rules.
But you need to know, Mr President, that there are increasing concerns about the reasonableness of some of the Covid-19 rules. Like equality, reasonableness is also a legal requirement for policies. Section 33 of the constitution says: “Everyone has the right to just administrative action that is lawful, reasonable and procedurally fair.” Now, you have conceded that some of the rules are contradictory. And I’m sure you’d agree with me that contradictory regulation cannot be said to be reasonable.
Indeed, some of the loudest voices against unreasonable regulation are your supporters, who are so concerned about the social impact that they’re prepared to speak publicly, rather than whisper the truth.
Expect more people to push back against the perceived excesses, since parliament, which is an essential check and balance, has been missing in action. Your newsletter of May 18 shows that you’re aware of this, saying: “We will continue to welcome different — even dissenting — viewpoints around our national coronavirus response.”
We must remember, Mr President, that public policies and conduct must not only pass the reasonableness test in a court of law, they should also pass that test in the court of public opinion. The king in The Little Prince learnt that to derive legitimacy, laws must also be just, fair and reasonable in the court of public opinion.
Resistance to apartheid has taught me that when the law is unjust, violating it is not only justified as legitimate, it is exalted as heroic
However, most of those bearing the brunt of the draconian rules, who feel they’re being asked to throw themselves in the sea, don’t have the means to engage with you.
If I am correct in my observation, how long will our edifice hold?
How long will the cry of the young people in villages and townships — whose self-employment has ground to a halt, their unregistered businesses ineligible for loans and salary relief — go unheard? While the R350 basic income grant for the unemployed is fantastic, how long will it take to reach the poverty hotspots?
Instead, we read of food parcels being delivered randomly in a process tainted by corruption.
And if that R350 does arrive, it is cold comfort for Moses the parking attendant and Meko the part-time gardener or others doing casualised labour who still make twice the amount the Unemployment Insurance Fund would pay out — even if they were registered as employees.
You need to hear them, Mr President. You need to hear Gogo Dlamini, who has been stopped from making the R350 a week she got selling hot amagwinya or meals at taxi ranks.
People’s resistance to colonial and apartheid laws has taught me that when the law is unjust, violating it is not only justified as legitimate, it is exalted as heroic. Perhaps you can take a page out of De Saint-Exupéry’s book, Mr President, and not only save the people from avoidable pain, but also preserve democracy.
- Madonsela is the Law Trust Chair in Social Justice at Stellenbosch University