Cyril, I guess you suck now, because your team sucks

I’d previously written about how great it was that the legislative framework was ready to deal with this pandemic, and it is. However, that same broad sword that enables authority to set regulations particular to the pandemic also comes at a price I never thought we’d have to pay.

Liberties are awesome. Revolutions the world over have fought for freedoms and when our freedoms get limited, unjustly, we tend to fight back. The important bit there is to determine what would constitute an unjust limitation. Rights are limited all the time. I can’t simply walk into the Union Building demand to see the president, which is an infringement on my freedom of movement, but I can appreciate the importance of that limitation.

There are other limitations I may not be able to appreciate but I accept them because most people would disagree with me, and fighting it out in court is just not worth it.

But what if an overwhelming majority of people are upset about the limitations? External to a pandemic, one can engage the courts for relief. This is why we can puff a little joint in the privacy of our own homes … even though it took a cumulative 20 years to fight it out. Though that was in normality.

What if we’re unhappy during the pandemic?

To illustrate what makes the state of disaster declaration so powerful, it’s best to contrast it with a state of emergency. The latter has a separate framework but is grounded in the Constitution, which expressly stipulates the extent to which rights can be limited. No such provision exists in a state of disaster, but there is a further void. In a national state of emergency, any regulatory policy must first be passed through parliament. This would include lockdown regulations. However, given that we are in a state of disaster, the national command can handle all the regulation. In other words, the political accountability is less than what it would be in a state of emergency.

Seemingly, this was always okay because our democracy has extensive safeguards in place, namely the judiciary, but if the judiciary could overrule anything the executive does, that would infringe on the principle of separation of powers – so the judiciary has limited counter-balancing powers.

Further, and I apologise for the legalese, the legal fraternity is still debating what the legal nature of the regulations are …whether they amount to policy decisions or administrative action is a huge dichotomy that will inform how to attack them, and once that has been determined, convincing a court that it’s urgent is another hurdle, and then fighting it successfully may amount to the brick wall.

One cannot simply challenge the regulations because one does not like them. The authority has the, uh, authority to implement what it sees fit for the purpose of dealing with the disaster, even if it upsets people.

People being upset is not a significant legal factor … so one would need to approach the court to say that the regulations are at odds with the empowering Act (the Disaster Management Act), which is hardly a winnable fight given how broad the Act is. The alternative would be to try to convince a court that regulations amount to an “administrative action” and ask the court to review them, but in that case the court cannot say that the regulations are bad.

A review asks the court to make a determination that the person who engaged in the administrative action did not apply their mind. Even if one did win a review application, the court can only compel the authority to consider additional facts when making the decision, and therefore Nkosazana Dlamini-Zuma could simply say that she has evidence that smoking complicates Covid-19 treatment and reimplement the regulation.

It’s not just about the smoking though. It’s that the only recourse in the hands of the people is obscenely either obstructively delayed or seriously ineffective.

At first, not many people minded because we thought that the president and his team were doing a good job, but as reports piled on of ministers not taking the situation seriously, making announcements that did not correspond with regulations and increasingly giving the country evidence that they were not equipped to cope with the situation, the leadership has been losing the faith of its people.

I watched in agony as the minister of basic education coughed into a microphone, while wearing her face mask as a necklace, while touching her face, while trying to impress upon us the seriousness of the situation.

No!

I don’t buy it. Don’t get me wrong. I buy that the situation is serious, but I’m not buying the solution from Cyril, because even if he came out and impressed again, his team sucks.

Yes, we were thrilled when the action was taken to deal with the virus and we kept the numbers low and we were supporting the limitation of our own rights because we believed it was what needed to be done and we were kept in the loop.

But now, the numbers are getting higher, decisions are being changed at the drop of a hat and the leadership that once shone so brightly by carefully moderating our liberties for a just end seems to be flouting our liberties because it has no idea what else to do and there’s pretty much nothing we can do about it.

And that sucks.

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