What’s so upsetting about ‘immediate effect’?

At least last time, we were given a few days to stock up but now the paternal booze spanking waited on nobody.

On the one hand, one can understand the need to avoid hospital visits for avoidable injuries; something nearly all my doctor friends corroborate. On the other hand, if one estimates some 600 hospitals in South Africa with 10 alcohol related injuries per day over the 42 days the alcohol ban was lifted, that’s a mere 0.42% of the population ruining it for the rest of us, which is pretty annoying, but the number is probably even lower considering that the estimate was generous and for nearly half that time, alcohol wasn’t available due to weekend restrictions.

Some were more irate than others and towards the top of that angry tier stood shadow minister of communications and digital technologies Phumzile Van Damme. Of particular upset to her was the manner in which the announcement was made; on television “with immediate effect”. On Twitter, those who disagreed took the uncreative approach of making it seem as though she’s angry that she can’t get her wine.

It’s more than that though. It’s a strict application of legal and political philosophy.

Rules are made in a particular way that is standard, even in unprecedented times. This is due to the principle of legal certainty.

The reason is pretty basic; if we don’t know where the rules are to come from, how do we know which rules to follow and who checks that the rule makers are acting properly, if we don’t know who they are? Without it, we don’t know who is allowed to make what rules and things could get pretty messy when an opposition ward councillor tries to gazette national regulations and there is nothing showing that they can’t.

In South Africa, our rules may have various sources, from judgments to legislation, to regulations, to international instruments, but the manner in which they are formed and the bodies responsible for forming them are all informed by chains trickling from the Constitution.

In terms of the Disaster Management Act, it’s a pretty clear chain: The Constitution allowed the Legislature to enact the Act, which in turn gives the minister of cooperative governance the power to call a National State of Disaster and impose regulations to curb in by means of government gazette.

So on the face of it, the president (who is not the minister of cooperative governance) making announcements without the regulations being present that have immediate effect smacks legal certainty out of the law.

The legal purist in me felt paralyzed by the thought that our president could commit such a jurisprudential sin and my phone lit up with messages asking, “can he really do that?”, which is where the practical side of me had to come out.

The answer, for the reasons above, strictly speaking, is obviously no. However, the only real manner to challenge that would be to go to court and even if you went on an urgent basis, you would need to afford some time, even if it’s a few hours, for a right of reply. By that point, he could have NDZ sign some regulations and gazette them by which point that court case would be purely academic.

And just a couple of minutes after the speech was done, the Government Printing Works had already published the regulation amendments (by the minister of cooperative governance, I should mention) to their website.

For those asking why this is a problem now and was stemming from previous speeches, it’s not because of the alcohol ban itself. It is because of the “immediate effect” bit. Never before has the president announced anything to start immediately. He would make announcements of what is to come and then the regulation would follow.

We may be South African but “immediate effect” seems significantly more … errr … immediate than now now or just now. Purists would argue it’s putting on the shoe before the sock and those only concerned with practicalities wouldn’t really care considering the regulations were published now now after his speech.

The concern might seem academic but it is legitimate because practicalities may make it seem insignificant but remember, formalities are what allow us to both know, understand, follow and even challenge a rule. Therefore the idea of a president being able to go on TV and make rules with no checks and balances and leave the formalities to later is a scary thought, perhaps not to the everyday citizen but certainly to those engaged in the legal process

And then to the everyday citizen if/when it starts to affect them and more especially if the formalities are complied with less now now and more just now.

Yes, people will talk about industry and jobs and economy and such and that is a fight they can have (spoiler alert: they’ll lose). The real legal fight is whether we could be content with breaking legal certainty, if but for a moment, regardless of no practical effect. I mean, even if they published the regulations at 8.59am the following day, there would be no practical effect other than the lack of time to prepare and maybe that’s something.

The best way to answer the question is to ask yourself whether you rather care about what the law does or how it works. If your answer is both, well you at least have to admit that you have some serious questions to ask.

Richard Anthony Chemaly entertainment attorney, radio broadcaster and lecturer of communication ethics.

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