At the weekend finance minister Tito Mboweni shared an SA Reserve Bank chart (see below) highlighting that the country’s Covid-19 restrictions are far more onerous than the average nation’s. In this interview, Martin van Staden, a legal expert who serves on the Free Market Foundation’s executive committee and Rule of Law Board of Advisors, unpicks the legal details, including the strange definitions of what constitutes a beach – and why the government has overstepped the mark on our freedom. – Jackie Cameron
On Covid-19 restrictions in SA:
South Africa had a hard lockdown last year – along with most of the world – from March of 2020. Then progressively, each two or so months, we downgraded a level until we reached level one, I believe, in August – I’m speaking under correction. The economy was mostly opened up, although not entirely. Then the new wave or the new strain that apparently is endemic to South Africa came about. In December of last year – right as the tourism started ramping up and people were already flying down to their destinations on the south coast and east and west coasts – the government announced that, suddenly, South Africa is back on level three of the lockdown.
This involved, again, the prohibition – as a general rule – on large gatherings. Casinos are limited to 50 people and churches are limited to 50 people. That’s another arbitrary number that’s been pulled out of a hat. Some churches seat thousands of people. Now there’s this random regulation that says only 50 people can sit there, even in these mega churches that you see sometimes. That’s the type of stuff you see in level three regulations.
But most importantly – and I think this was slightly just before the level three regulations – [was the] related regulation that the Garden Route in South Africa, which is a very popular tourist destination on the south coast, was that the beaches and so on were closed there. That was eventually extended to all beaches on the east and south coast. Only the west coast is currently still open, but that’s not a very popular beach destination as far as tourism goes. Tourism has suffered as a result of these regulations.
On what the government defines as a beach:
I have absolutely no idea. I don’t know if other governments have tried this. A beach isn’t really something you define. It’s absurd, to an extent that shows the folly of regulating society in this way. When we go to the beach, people instinctively know what we’re talking about. Most people would think it’s the sand right adjacent to the ocean. But now government includes a large part of a river mouth that goes into the ocean and somehow excludes private property – although I’m quite pleased about that.
But I mean, if there’s private property on the beach, it’s still part of the beach. But of course, when you when you jump from English to legalese, then a lot of funny things become possible – and I say this as a PhD level student in law. It’s quite inaccessible to the layperson. To comprehend that one second you are on the beach and now you could go to jail, I think, for up to six months and be levied with a hefty fine. If you take one step back, it’s totally okay.
On the government’s approach to the lockdown:
I don’t know about other governments, but our government has essentially approached this lockdown as if our economy [and] the South African constitution does not exist. This is something that Judge Norman Davis of the Pretoria High Court observed during, I think, the initial stages of the hard lockdown last year. We just came out of level four on to level three, and the judge described the government’s approach to the regulations as paternalistic and not constitutional.
Not to say it is necessarily unconstitutional, but just government didn’t act like there was a constitution that constrained its power. They just did whatever they wanted. That is continuing as if the judge never made that judgment and said government needs to take our Constitution seriously. It is really just a circus.
On the logic behind the beach ban:
[There’s] a point that I’ve been trying to emphasise actually for a few years now, and that is this idea of the rule of law. Most people talk about the rule of law, and it’s just this filler term that we use to mean good governance or good feelings. But there is some substance to it. One of the big things that the rule of law as a legal doctrine entails, is that discretion needs to be circumscribed, defined and limited.
I don’t know if Minister Nkosazana Dlamini-Zuma is in fact involved, but you open the door to regulations being used for corrupt purposes. When you say the minister can do X if it’s in the public interest, that’s a very open-ended type of enabling power. That is exactly what the Disaster Management Act gives the minister of co-operative governance and traditional affairs, which is Minister Dlamini-Zuma. She has been given that power by law to essentially shoot from the hip.
That is what the Disaster Management Act empowers her to do, and that does empower her to use that for corrupt ends. The rule of law thing to do, as it were, would be to amend the Disaster Management Act and actually put in limits on on how this power can be exercised.
You need the law and the rule of law to put real limits on government to say, ‘if the private sector is able to enforce its own social distancing and hygienic requirements, then it should be allowed to do that’. I think we are able to do that in South Africa and we should be allowed to do that. The government is not a parent. It is a servant, according to our theory of democracy, at least.
Now, as far as the thinking that went into the beach regulation, I have no idea. I am astounded that I continue to be surprised by the types of things that our government does in its moments of regulation making. Seriously, this was one of them. Because a beach is probably one of the safest places for you to be, during a pandemic where the virus is transmitted from person to person. Beaches tend to be very open. Beaches tend to be quite windy. That is exactly the place where you want to be.
We’re all just waiting in trepidation, I guess, for the renewed ban on tobacco to also come back. Government has said it won’t do that again, but you never take this government at its word. So SAB (South African Breweries) – one of our largest liquor companies in South Africa – has announced that it’s withdrawing something like R2 million in investment from the country, because it simply cannot deal with this anymore.
Then alcohol is allowed and then it’s not – as if alcohol has any noticeable influence on whether you contracted the disease or not. At one point, I think, some of the ministers said that alcohol is prohibited because when people drink, they are gathering with other people. But the regulations already regulate gatherings. Why then go the extra mile and prohibit people from having a beer alone at home?
That is, on the face of it, irrational. But to me, it betrays the obvious agenda that government is approaching the Covid-19 pandemic from, and that is to almost test the limits of how far it can get in socially engineering our society. I think it’s proving to itself that it can go very far, in socially engineering society. To me, it’s a question of liberty. It’s a question of if we allow government to so strictly and terribly regulate this one thing, it simply means that government is going to do it in other respects as well.