Ordinary citizens have the right to challenge lockdown regulations in court
We often take our healthy and robust democracy for granted. Yet it is probably our greatest asset in our momentous struggle to overcome the coronavirus pandemic. We have among the most politically-engaged citizenry in the world.
A poll in 2018 by the Pew Research Center shows South Africans are strongly inclined to take political action about issues they feel most strongly about, such as health care, education, freedom of speech and corruption.
The poll confirms much that we already know about ourselves. We enjoy nothing more than robust engagement with our government and among ourselves on the burning issues of the day. We have an active civil society ever ready to safeguard our fundamental freedoms and rights.
One of the triumphs of our democracy is that every South African believes the Constitution protects them and that the courts are a fair and impartial arbiter of their interests. I got thinking on these matters during a recent visit to the Eastern Cape to assess the province’s coronavirus state of readiness.
I was asked by a journalist whether I was concerned at the pending litigation challenging certain provisions of the Disaster Management Act. This law is the basis for all the regulations promulgated under the national state of disaster we declared to combat coronavirus.
Since the start of this crisis, a number of people have exercised their right to approach the courts. The lockdown regulations were challenged in the very first week of the lockdown by a private citizen from Mpumalanga who wanted an exemption from the travel prohibition to attend a funeral.
In the 7 weeks that have followed, there have been legal challenges from a number of individuals, religious bodies, political parties, NGOs and from business organisations against one measure or more of the lockdown provisions they were unhappy with. Some have succeeded in their legal challenges and some have not.
Some had approached the courts on the basis of the urgency of their cases had their urgency arguments dismissed and others have found other avenues for the relief they sought. Others have subsequently withdrawn their applications following engagement with government.
While we would prefer to avoid the need for any legal action against government, we should accept that citizens who are unhappy with whatever action that government has decided on implementing have a right to approach our courts for any form of relief they seek. This is a normal tenet of constitutional democracy and perfectly acceptable practice in a country founded on the rule of law.
We have checks and balances in place to ensure that every aspect of governance is able to withstand constitutional scrutiny. Where we are found wanting, we will be held to account by our courts and, above all, by our citizens.
Besides our courts, our Chapter 9 institutions exist to advance the rights of citizens, as do the bodies tasked with oversight over the law enforcement agencies. As I told the journalist, every South African has a right to approach the courts and even I, as President, could never stand in the way of anybody exercising that right.
There has been, and will continue to be, robust and strident critique of a number of aspects of our national response to coronavirus, from the data modelling and projections, to the economic effects of the lockdown, to the regulations. As government we have neither called for such critique to be tempered or for it to be silenced.
To the contrary, criticism, where it is constructive, helps us to adapt and to move with agility in response to changing circumstances and conditions. It enriches public debate and gives us all a broader understanding of the issues at play.
We have consistently maintained that we rely on scientific, economic and empirical data when it comes to making decisions and formulating regulations around our coronavirus response. To the greatest extent possible under these challenging circumstances, we aim for consultation and engagement. We want all South Africans to be part of this national effort. The voices of ordinary citizens must continue to be heard at a time as critical as this.
The coronavirus pandemic and the measures we have taken to combat it have taken a heavy toll on our people. It has caused huge disruption and hardship. Although we can point to the progress we have made in delaying the transmission of the virus, there is still a long way to go. The weeks and months ahead will be difficult and will demand much more from our people.
The pandemic will therefore continue to place an enormous strain on our society and our institutions. Even as we gradually open up the economy, the impact on people’s material conditions will be severe. For as long as this is the case, the potential for conflict, discord and dissatisfaction will remain.
As we navigate these turbulent waters, our Constitution is our most important guide and our most valued protection. Our robust democracy provides the strength and resilience we need to overcome this deep crisis. Just as the government appreciates that most court applicants are motivated by the common good, so too should we recognise that the decisions taken by the government are made in good faith and are meant to advance, and not to harm, the interests of South Africans.
Our foremost priority remains to save lives. Our every decision is informed by the need to advance the rights to life and dignity as set out in our Constitution.
We will continue to welcome different – even dissenting – viewpoints around our national coronavirus response. All viewpoints aid us and help us to work better and smarter. The exercise of the fundamental freedoms of expression, association, and speech is a barometer of the good health of our democracy. But much more than that, these rights are essential to the success of our national and collective struggle to overcome the coronavirus.
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It appeared the 37-year-old woman and her…full details