OPINION: It’s the spirit of the law that’s missing…

Norman McFarlane

Two high court judgments handed down last week – and the subsequent responses to those judgements on social mdia – make it clear that the nation and the ruling party gtovernment are no longer on the same page in fighting the Covid-19 pandemic.

When President Cyril Ramaphosa announced a national state of disaster in terms of the National Disaster Management Act in March, the sense of unity that pervaded the country was palpable.

Pretty much everybody bought into the notion that the lockdown which commenced on March 27 was necessary, to “flatten the curve”, teminology, along with “contain the spread of the virus”, we all adopted with alacrity, because it made so much sesne at the time.

“We’re all in this together” became something of a national mantra, and inevitably, Paul McCartney’s and the Frog’s Chorus, We All Stand Together, popped up on social media.

Even after the first three weeks of lockdown was extended by a further two weeks, the collective sense of purpose endured, despite a rising sense of resentment because of the seemingly contradictory, counterintuitve, confusing, and sometimes irrational regulations, that emerged from the national coronavirus command council (NCCC).

The NCCC we were told, has the power to regulate our lives completely, and as time passed and the lockdown was extended again and again, the impact of the emergent regulations and the heavy-handed enforcement, began to weigh heavily upon many, and the rising tide of resentment spilled over into open rebellion.

People walking on the beach, swimming and surfing, illicit cigarettes being sold openly on the streets in full view of SAPS patrol vehicles, people out and about without any form of face covering, became commonplace.

The initially laudable intention of saving lives rapidly became mired in a vitriolic and binary brawl about lives versus livelihoods, and the perplexing and and often contradictory regulations governing our lives in successive lockdown levels, widened the chasm between the nation and the government. We were no longer, it seemed, all in this together, and where it all went wrong is apparent in the two judgments handed down last week: the North Gauteng High Court judgment pursuant to the tobacco products ban, and the Western Cape High Court challenge to the constitutionality of the NCCC and its alleged overeach in response to the pandemic.

The arguments are tedious and technical, citing much legislation and legal precedent, but in both judgements the conclusion is quite clear: the executive, represented by the Minister of Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini-Zuma, has acted strictly in accordance with the letter of the law, and her actions and decisions all pass the rationality test, as it is set out in our overarching legal framework, which is derived from the constitution.

Both judgments point out that as long as the actions taken are intended to achieve the objective of the state of disaster – to whit, to save lives – than those actions and their consequences, whatever they might be, are deemed to be rational in law.

Even if the action taken – perpetuating the tobacco products ban despite a lack of conclusive scientific evidence that smokers are at greater risk if they contract Covid-19 – does not achieve the original objective of saving lives, it is not within the jurisdiction of the courts to pass judgment on the minister’s chosen course of action, because it would transgress the separation of powers doctrine.

But here’s the rub. It is within the jusrisdiction of the minister and her colleagues in the NCCC, a legal advisory body to cabinet, to apply that which seems to be lacking in so many of the decisions and determinations that have been inflicted upon us in the last 90 plus days of lockdown: common sense.