“There is no need to be on the road. There is no need to move around…” said Police Minister Bheki Cele at Wednesday’s security ministerial briefing, outlining patrols and roadblocks, and promising “more action”.
“If you break these laws, or regulations, you are six months in [jail] or fines or both. The police [with] support of SANDF, we are ready to make sure these things we talk about of complete non-movement will be implemented and will be implemented accordingly. For 21 days, please stay sober.”
It started somewhat differently when Co-operative Governance Minister Nkosazana Dlamini-Zuma, who’s responsible for the National State of Disaster regulations, emphasised the serious public health threat of Covid-19 and the rapid escalation of transmission.
On Wednesday, 709 people were confirmed positive for Covid-19, up from 554 just a day earlier – and 61 on 15 March.
“This lockdown is about protecting lives… The public will only be allowed to move when you buy food, medicine and go to see the doctor,” said Dlamini-Zuma. “Generally, you have to stay home.”
Or as the lockdown regulations in 11B put it:
“For the period of the lockdown every person is confined to his or her place of residence, unless strictly for the purpose of performing an essential service, obtaining an essential good or service, collecting a social grant or seeking emergency, life-saving or chronic medical attention.”
Gatherings are banned, except funerals, which are limited to 50 people. Night vigils are also a no-no.
No travel between provinces. No travel between metropolitan areas and districts. No travel outside South Africa as borders are closed for the lockdown.
Booze is banned with bottle stores, shebeens and taverns closed for 21 days from midnight on Thursday, and shops are limited to selling only essential goods.
Essential goods are defined in Appendix A of the lockdown regulations as food, including non-alcoholic beverages; sanitary products like toilet paper, soap and condoms; basic goods like electricity and airtime and fuel including coal and gas.
At Wednesday’s briefing by security ministers, it got murky at times in a way that highlighted if not necessarily divisions in Cabinet, then definitely mixed messaging.
Health Minister Zweli Mkhize briefly attended the briefing to publicly withdraw his comments earlier in the day that walking dogs and jogging would be okay, as long as it’s done in line with social distancing.
It was a win for the hawks.
“There shall be no walking of dogs that will be allowed,” said Cele.
Other inconsistencies emerged – and the potential for abuses and discretionary implementation.
The lockdown regulations in Annex D under “The following places and premises are closed to the public…” alongside parks, cinemas, beaches, casinos, taverns, shebeens, bottle stores, includes in “(c)(xv) taxi ranks, bus depots, train stations and airports”.
But taxi services, like bus services, are permissible in Regulation 11C(1) “for purposes of rendering essential services, obtaining essential goods, seeking medical attention, funeral services and to receive payment of social grants”, with a cap of running at 50% carrying capacity. For example, two people, including the driver, in a four-seater or no more than seven passengers and the driver in a 16-seater taxi.
Transport Minister Fikile Mbalula emphasised the essential service taxis and buses would provide in getting essential workers to work and people from remote areas to grocery shops.
And limited hours are gazetted during which taxis and buses may perform this essential service: 5am to 9am and again from 4pm to 8pm.
“If you want to buy groceries and you stay in a remote area you will be catered for in the 5am to 9am [slot] and you’ll be catered for from 4pm to 8pm,” said Mbalula, adding later in the briefing:
“Even those taxis will be essential… We want to allow that worker to catch that taxi to go to Chris Hani Baragwanath [hospital]. We want that worker to catch that bus to go to Eskom… If we see you at 12 o’clock on the street, you must have a good reason.”
E-hailing services like Uber or Taxify and metered taxis are also not allowed, unless they provide an essential service like getting people to grocery shopping and to doctors and hospitals in medical situations. The conditions are the same as for taxis and buses.
It’s unclear what would happen in a medical emergency at, say 1pm.
The way the regulations were drafted, including inconsistencies between Regulation 11 and Annex D, may give rise to challenges.
Trade and Industry Minister Ebrahim Patel made it clear courier services were deemed essential if they delivered “health products”. But there was no clear answer on whether grocery or take-away food deliveries by a courier would be permitted.
However, several ministers touted spaza shops as residents’ first port of call to get food.
“Spaza shops are allowed. You must buy nearest to where you are. You are charged to go to the nearest shop. You must be able to explain this if you should meet police on the way. It must be justified,” said Justice Minister Ronald Lamola.
In another inconsistency, nowhere do the regulations say residents may only shop at their nearest store, nor do regulations define what is nearest.
Perhaps the plug for spazas is a quick fix for government delivery to a sector which has long appealed to the government for support similar to Cele’s enthusiastic support for the booze ban to lower crime. As the police minister put it: “Rest assured there will be less crime. Rest assured that criminals will fall into the net…”
Or perhaps this plug for spaza shops is in recognition of the heavy economic impact of the 21-day lockdown on some of South Africa’s most vulnerable and working poor.
Hawkers, the self-employed and those scratching a living together, like rubbish collectors and recyclers, remain out of the loop of the economic support measures, from debt relief and resilience funds for small businesses to a R500 tax break for those earning less than R6,500 a month.
The regulations as they are drafted, alongside available ministerial directives, seem to allow for loopholes – to be exploited by some, or abused by those who now may stop and question South Africans to decide whether they are really going to the grocery store, the pharmacy of the doctor.
“When the regulations are implemented, there no doubt will be teething problems. It will be monitored by the NatJoints [the National Joint Operational and Intelligence Structure of bringing together police, the military, intelligence and others]. Nothing is cast in stone,” said Mbalula.
The lockdown regulations potentially go further than even State of Emergency measures permitted in the Constitution by indemnifying the state against any claim of compensation.
Section 37(5) of the Constitution ensures, “No Act of Parliament that authorises a declaration of a State of Emergency and no legislation enacted or other action taken in consequence of a declaration may permit or authorise (a) indemnifying the state, or any person, in respect of any unlawful act…” or the derogation of rights that remain regardless of any State of Emergency-related limitations. For example, the constitutionally guaranteed rights to human dignity and life remain in force entirely – even in a State of Emergency.
But in the lockdown rules, Regulation 11E offers wholesale indemnity for police, soldiers and peace officers like metro and traffic police, collectively defined as enforcement officers.
“No person is entitled to compensation for any loss or damage arising out of any bona fide act or omission by an enforcement officer under these regulations.”
It remains to be seen how this will play out. (See update below)
And while Defence Minister Nosiviwe Mapisa-Nqakula said mobilising soldiers – they’ll go on foot patrols and guard mass distribution depots – was not a show of force by the government, the possibility of exactly that, a show of force, was not ruled out.
“It will only be skop, skiet and donder [kick, shoot and beat] when circumstances determine that. For now, we’re a constitutional democracy…” she said. (For now… – Ed)
“It’s not about use of excessive power. It’s not about how powerful the state is. It really is about protecting one another, protecting ourselves from this virus”
But if South Africa nips the Covid-19 public health emergency in the bud, it will not necessarily be because of the government – and definitely not because of police kragdadigheid – but because of South Africans themselves, their kindness, grace, perseverance – and social solidarity. DM
*UPDATE: Some two hours before the lockdown, new regulations withdrew the wholesale indemnity for police, soldiers and peace officers like metro and traffic police in Regulation 11E. This initial provision came although such indemnity is banned even in a State of Emergency, according to Section 37 of the Constitution. The updated lockdown regulations, among others, ensure toothpaste is now part of essential items that can be bought, alongside baby products like nappies.