THE DEPLOYMENT of SANDF military personnel in support of SAPS enforcement of an unprecedented ‘lockdown’ in terms of the Disaster Management Act and National Health Act has resulted in at least three deaths, and countless examples of brutality and ‘cruel and unusual punishment’ reminiscent of the apartheid era.
The new regulations gazetted in terms of the legislation, and which appear to reference the colonial 1919 Public Health Act, may also turn out to be unlawful, as too the many contraventions of South Africa’s Bill of Rights.
The Disaster Management Act was drafted primarily to deal with natural disasters such as hurricanes, earthquakes, droughts and floods, and does not grant the President the kind of powers contemplated by the latest round of executive policy-making decisions.
Similarly, the National Health Act is focused on providing health care for all, and does not contain any reference to the Public Health Act written during a period in which black South Africans were deprived of property rights and other rights such as habeous corpus.
The past days stream of online visuals of combined law enforcement officials invading citizen’s homes without search warrants, shambokking residents on private property, pointing shotguns at civilians queuing for food, affecting arbitrary arrests of civilians, and in some instances, forcing South Africans as well as migrants, to do humiliating squats, brutally knocking others to the ground, rolling them on the streets and pavements, are all brutish acts calculated to force compliance with the latest rounds of regulations. As such, they deserve greater scrutiny from both our government and opposition parties.
This is not right. Let’s respect civilian rights and have all security officers observe the law. pic.twitter.com/fyBdwTmLqF
— Mmusi Maimane (@MmusiMaimane) March 30, 2020
To date, the official opposition DA has merely written a letter calling for military investigation into the incidents whilst parliament is in recess. Minister of defence Nosiviwe Mapisa-Nqakula has meekly cautioned members of the South African National Defence Force (SANDF) against their heavy-handedness during the lockdown.
With all the talk of war South Africans could be forgiven for thinking that the nation had officially declared war against the virus. Unfortunately we are in uncharted terrain so far as this is concerned, and Parliament has yet to pass a War Powers Act which would be required to allow President Ramaphosa to act as a war-time president.
At the start, the President acknowledged that the 15 March, Declaration of a National Disaster was one step away from the so-called national lockdown and a long way away from a State of Emergency. The shelter-in-place directive is unprecedented in modern times, but clearly necessary from a public health perspective. Law enforcement officials however seem to be a little overzealous in jumping the gun when it comes to the State of Emergency and special War Powers that would be needed to drive a command economy under military supervision.
Goods deemed non-essential, and therefore currently restricted from sale, quixotically include vegetable seed, general hardware, and cleaning equipment such as brooms.
Though generally muted by the past weeks events, our courts are still operating and functioning under special rules, and to my knowledge, the rule of law has not yet been suspended. It is unclear how citizens are expected to access legal aid during a lockdown.
Nevertheless Magistrates were quick to roll out summary fines of up to R5000 for contraventions of the new regulations, the magnitude of which will take some time to circulate within our communities. Legal professionals were generally silent or bunkered down, but eager to offer advice on the drafting of wills. Did we scrap the Audi rule alongside the National Environmental Management Act in the process?
We can only hope that the President supplies us with a timeline to the resumption of normality and that attempts to get ahead of the crisis will not come at the further expense of human rights.
The lockdown may be extended indefinitely, as in many other countries.