|By Zakhele Mthembu BA Law LLB (Wits) is a legal researcher at the Free Market Foundation|
Are we as taxpayers truly the bosses of the politicians and bureaucrats in Cape Town, Pretoria, or Bloemfontein? The handling of the covid-19 pandemic has shown that we are not. Rather than the idealised relationship between a public ‘servant’ and the public, the reality is reminiscent of a relationship between a lord and his vassals.
In response to questions posed to him in Parliament, the president stated how his cabinet did not destroy jobs through their inhibitions on liberty but rather, saved us South Africans from ourselves of course. We have been told over the course of two years that a virus is the one that was closing businesses, confiscating entrepreneur’s goods and barring the provision of services, making commerce illegal. That was not the government we are told; it was the virus!
The president’s answer seemingly ignored the difference between a monarchy where the rulers have absolute power, and a constitutional republic that has as one of its foundational values, the Rule of Law; like South Africa does. For if he truly appreciated this fact, he would know that rule by edict which has been the norm over the past 2 years is not constitutional, thus, it undermines the institution (Republic of South Africa state) which he is the head of.
The case of De Beer and another v Minister of Cooperative Governance and Traditional Affairs 2020 was first heard at the High Court of South Africa in Pretoria. The court found large parts of the regulations passed under the Disaster Management Act to be unconstitutional. The case was appealed, and the Supreme Court of Appeal found in favour of the Minister, who had appealed. The ratio offered in the High Court judgment is still sound, albeit being overruled by an order of a higher court.
The matter of covid regulations and their constitutionality has not reached our apex court, the Constitutional Court; it would therefore not be illogical to posit the matter as not yet being settled. Even if it were to reach the highest court, it too can get things wrong. Its judgment will not invalidate the soundness of the argument against the permanent institution of what are invasive and substantive inhibitions on liberty.
The covid regulations have shown us the folly of the rule by edict model, which has characterised by increased state action and control ever since the outbreak of the pandemic. Millions of citizens being told how to live their lives has not worked, nor will it in the future. The economy is proof of that, even though the president would like to believe the virus was the one closing businesses and not a police force serving under his cabinet.
This form of ‘rule by edict’ is opposed to constitutionalism; constitutionalism roughly being the ideal that all actions are held up to a particular principle or standard, an objective and unchanging norm/s applicable to everyone. Ruler and ruled alike, or, the Rule of Law. This principle of rulers not being able to ‘do as they please’ is found in our constitution, which has the Rule of Law as a substantive value in section 1(c). We as a country also have a Chapter on Human Rights in the Constitution which although it permits the limitation of rights, does not permit the unjustified and arbitrary limitation thereof.
The proposed permanent regulations for Covid are an example of the rulers doing as they please, irrespective of the arbitrariness thereof. What is in one’s interest realistically is exemplified every time they act. It cannot be that I can act in a manner contrary to my interest, for if that manner was opposed to my interests, I would not be acting that way. In this context, South Africans, have shown through righteous and noble civil disobedience that they are opposed to wearing masks and a bevy of other absurd regulations governments instituted. Yet, the state says it is acting in their interest by doing the exact opposite of what they want.
The idea that the government’s job is to do what is ‘best’ for citizens, is absurd. Individuals and their families are more than capable of doing what is best for them. The government should be preoccupied with creating an environment wherein people doing what is best for them is made as easy and free as is possible. The president and his Cabinet do not have special powers that permit them to dictate how we should run our lives.
It seems Mr. Ramaphosa and his cabinet took the global organizations like the World Economic Forum seriously when they spoke of a ‘new normal.’ They tasted unparalleled power during the state of disaster, and I doubt they want to let it go.
Now whether we the people want the ‘new normal’ of constant mask wearing or not is inconsequential. We are but mere vassals subject to the edicts of our overlords. We oppose mask and vaccine mandates. They are enforced nonetheless; they are for our own good after all!
The president and his cabinet ought to be aware that they are part of an administration and not a Royal Court. They are not absolute rulers ordained divinely. We as citizens get to choose what is best for ourselves. Individually and in our families, we have the power over our own lives. The president gets his marching orders from us rather than us blindly following his edicts.
The vaccination rate is evidence that there are those in the public not comfortable with vaccination, and it would not be unreasonable to deduce that they aren’t comfortable with other government mandated measures. The government cannot institute as normal, a legislative reality that will see them continue exercising their authoritarian powers over South Africans. Violating constitutional rights to freely trading and bodily integrity/control among others.
The madness must come to end. As predictable as it was when it began, those who benefit from it – the government – do not want it to stop. Yet it must, if the road to recovery for the millions whose lives were upended by government actions over the past 2 years is to start in earnest, lest the country continue down the road to serfdom.