Don’t be scared of Ramaphosa’s new laws, worry about the private sector

I’m nearing the state of being corona’d out. On our radio show this morning, I sent an instruction to our news team to limit virus-related news and try to include reports on other things. They responded that, despite trying, it was impossible. As addicted as we may be to knowing what is going on, sifting through the information, real and not, is becoming increasingly too much.

People keep asking me in disbelief whether government’s actions are legitimate, so I have to try to stay abreast – so much so that I watched a 20-minute news story over the weekend from a seemingly reputable source titled “SPECIAL REPORT: China’s deadly coronavirus cover-up”, only to be subjected to, in my opinion, little more than anecdotal evidence.

After I’d taken my fourth Disprin for the day, I thought I’d want something stronger, but sadly I realised the bottle stores are locked down. Even if I was willing to break the law and locate a source, I could be traced through my phone. Eventually even I thought: How did we get here?

For the lockdown, we have the Disaster Management Act, which incidentally does not empower the president, but rather the minister of cooperative governance and traditional affairs, who has acted accordingly. For the cellphone tracing and tracking, we can thank that infernal inconvenience RICA, which empowers any law enforcement official to intercept communications to prevent serious bodily harm.

I have my doubts that many knew of these specific mechanisms within our legislative framework, and even for those who did, I doubt very much that they would have anticipated them being put to use in this manner for this purpose.

Who could have guessed that a global virus would strike to this extent? Sure, a disaster could have manifested in various forms, so as a point of departure, the generic approach within our law is prudent to allow for officials to deal with various possible eventualities.

Granted, this blunt yet giant sword does not wield the delicacy of a legal scalpel, but a legal scalpel would assume that you have one for each possible eventuality, and that is simply not possible, in part because no legal system is sophisticated enough for such, but primarily because one cannot legislate to plan for things we might not be able to imagine.

This generalist approach has resulted in significant executive power, some of which is wielded controversially. One may understand the need to strike out alcohol sales, but cigarettes? Perhaps one does not agree with the outlawing of walking the dog or going for a jog. Truth be told, this seems like heavy-handedness to me, but given that we’re dealing with something we’ve not dealt with before and are, for the most part, shooting in the dark, I’m happy for us to err on the side of excessive caution.

I suspect that most South Africans share that sentiment and thus don’t feel the need to challenge these restrictions, at least not yet.

But what more can the government do in the interest (or, to some, the guise) of keeping us safe? You might be anticipating a scary answer but the powers only stretch so far. If the pandemic gets worse, they may intensify only what they’re already doing. Even the president understands that if he loses the public support he’s so overwhelmingly gained, it may be difficult to implement even objectively legal measures.

So is there justification for any fear in terms of the law? Probably, but not necessarily from the state.

Planning for the initial lockdown has gone reasonably well and considering the still relatively low numbers in South Africa, it has been effective too. What happens after, when the relief funds dry out, when imports are cut due to exchange rate fluctuations … on a macro level, we seem to be somewhat focused on that.

Among all the Covid-19 drama on my timeline are a host of musicians playing music and people losing work. If there were something more to fear, it would be in that realm: the private sector.

On the individual level, the musicians unwittingly infringing on copyright by playing cover songs on their Instagram live, the employee working from home in their pyjamas defying their employment dress code or the tenants who can no longer pay their rent … en masse, these are the people in trouble if the letter of the law were to be implemented.

Sony, Universal and Warner account for more than 80% of the music industry and, historically, they haven’t actively gone after content creators for copyright infringement. The have had deals with platforms such as YouTube to send revenue to them should a user make use of their music but little more than such automated methods was how they chose to apply their rights.

Should one of them suddenly realise a significant revenue stream in litigiously enforcing their copyrights, they may lose popularity but they will make some serious income by taking on artists.

Similarly, landlords who had previously not bothered with evictions and enforcing of rent payment due to the prohibitive costs may now find themselves enticed or even compelled to get litigious if it means greater income.

And if a company gets desperate to let go of some staff without enduring the costly exercise of retrenchment, how far do you think the law will go in stopping them from implementing some fine print clause in some policy? The answer: not very far.

When one enters into agreements, signs disclaimers or ticks the I Agree box (even if you have read everything), one rarely anticipates such a pandemic situation and, to that end, the biggest scare shouldn’t be what the government can do to you, it should be what you’ve accepted to be done to you through any agreement you’ve signed.

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