President Cyril Ramaphosa acknowledged to the nation on Wednesday night that some of South Africa’s current lockdown regulations have been “contradictory” and “poorly explained” – and he said he was aware of public anger as a result.
But Ramaphosa’s latest address indicated that the controversial Level 4 regulations are likely to be maintained nationally until the end of May, with a few amendments.
“In the coming days, we will also be announcing certain changes to Level 4 regulations to expand permitted business activities in the retail space and e-commerce and reduce restrictions on exercise,” he said.
There was no hint as to what form these changes will take, but there has been abundant criticism of the regulations relating to retail, e-commerce and exercise.
One of the most vocal critics of the government’s lockdown rules has been former finance minister Trevor Manuel, who said this week that “a lot of the decisions that have been taken don’t pass the test of rationality”.
Assessing the rationality of the lockdown rules is, from one perspective, quite a complex exercise, since in some cases there are loud voices with clear vested interests on either side of the debate – and particularly when it comes to the ban on the sale of alcohol and tobacco. In other cases, the rationality of the regulations in question shifts according to whether the lens being applied to view them focuses primarily on public health or on economics.
But in terms of the Disaster Management Act, the equation is quite simple: regulations laid down by government during a State of Disaster should be “necessary to prevent an escalation of the disaster or to alleviate, contain and minimise the effects of the disaster”. The disaster, in this context, is the Covid-19 pandemic.
It is beyond doubt, however, that in almost all cases government failed from the outset to clearly articulate the reasons for the regulations, which has fuelled public frustration.
What follows is an assessment of the most controversial Level 4 regulations.
Rule 1: Ban on sales of tobacco products
Stated government reason: Initially, no reason whatsoever was given for the ban, but under increasing pressure from consumers and tobacco lobby groups, government has been disseminating information on the heightened health risks for Covid-19 posed by smoking.
Health Minister Zweli Mkhize has explained the tobacco ban in terms of the increased vulnerability of smokers to a severe Covid-19 illness course due to compromised lung capacity, and the additional stress this would place on South Africa’s public health system.
Cogta Minister Nkosazana Dlamini Zuma, in public statements, has also cited the adverse effects of smoking during a pulmonary pandemic – but has seemed insistent on primarily focusing on the risks posed by people sharing a single cigarette: “The ways sometimes tobacco is shared does not allow for social distancing but actually encourages the spread of the virus”.
Dlamini Zuma also claimed that government had received more than 2,000 public submissions motivating for a ban on tobacco sales – though a number of petitions doing the rounds appealing for the ban to be lifted have received hundreds of thousands of signatures.
Arguments in favour of the ban: The arguments for and against the ban on both tobacco and alcohol sales have at this stage been abundantly aired: we even made a podcast on the topic. Many local doctors and public health experts are in favour of the ban, though seemingly at least partly simply because there are no good arguments in favour of people continuing to smoke in any context. There are also anecdotal reports of smokers using this period and the ban to quit smoking, though the extent of this is unclear.
Arguments against the ban: By the end of April, SARS said the ban on cigarettes had cost an estimated R300-million in lost taxes. It is widely reported that cigarette smugglers are enjoying the payday of their lives, and Tobacco Wars author Johann van Loggerenberg told Daily Maverick that it is probable that criminal syndicates which previously focused on other contraband have now shifted attention to tobacco due to the enormous market offered by South Africa’s estimated 11 million smokers.
In addition, it is generally known that it is still relatively easy to obtain cigarettes – as Daily Maverick recently reported – meaning that the intended health benefits of the ban may not even be realised. It has also been argued that smokers who engage in dodgy transactions to illegally obtain cigarettes may be exposing themselves to greater health risks than they would if they were able to purchase their smokes from a supermarket.
Rationality check: For some time the research on the health impact of smoking on Covid-19 was ambiguous, and possibly twisted to fit particular views. But the jury now appears to be in: the World Health Organisation (WHO) stated on 11 May that: “A review of studies by public health experts convened by WHO on 29 April 2020 found that smokers are more likely to develop severe disease with COVID-19, compared to non-smokers”.
However, the WHO has not taken a position on whether countries should ban tobacco sales, although WHO Africa director Dr Matshidiso Moeti said in a webinar on 7 May that the organisation “supports the limiting of the added risk presented by smoking”.
In short, there are rational public health reasons to discourage smoking at this time – but the substantial cost of the unintended consequences of the ban on tobacco sales would seem to make this total prohibition irrational, in combination with the lack of evidence thus far supporting its health benefits.
International comparison: India and Botswana have reportedly also banned the sale of tobacco products, but the rarity of this move has led to South Africa’s lockdown conditions being labelled some of the strictest in the world.
Rule 2: Ban on the sale of alcohol
Stated government reason: As with tobacco, the government initially gave no clear reasons for the prohibition on alcohol sales, beyond Police Minister Bheki Cele’s warnings to the public to “stay sober”.
Since then, President Cyril Ramaphosa has defended the ban by stating: “There are proven links between the sale and consumption of alcohol and violent crime, motor vehicle accidents and other medical emergencies at a time when all public and private resources should be preparing to receive and treat vast numbers of Covid-19 patients”.
Arguments in favour of the ban: Hospitals all over the country have experienced dramatic drops in trauma cases which appear to be directly linked to the alcohol ban. Groote Schuur Hospital reported in April that it had seen the largest reduction in trauma cases in its over 80-year history – of which it said 50% could be attributed to the alcohol prohibition. Similar figures have been reported nationally. This has significantly reduced strain on trauma units and doctors, which frees up resources to treat Covid-19 patients.
One trauma nurse at Johannesburg’s Charlotte Maxeke hospital was quoted as saying: “Those that are calling for the lifting of the alcohol ban have no idea how much relief we are seeing”.
Arguments against the ban: SARS has reported losing even more from the ban on alcohol than on cigarettes: R700-million as of the end of April. Alcohol producers have, of course, been lobbying hard for a repeal of the ban, with South African Breweries telling the government that thousands of jobs are at stake if its breweries are unable to operate.
As with tobacco, the trade in illicit alcohol is reportedly thriving, and at least two people have died from drinking toxic home-brewed pineapple beer. Addiction counsellors, meanwhile, have warned of the adverse health effects faced by alcoholics who can suddenly no longer obtain alcohol.
Rationality check: The World Health Organisation states that alcohol “ is associated with a range of communicable and non-communicable diseases” that make a person more vulnerable to Covid-19, and also compromises the body’s immune system. For this reason, the WHO “encourages governments to enforce measures which limit alcohol consumption”.
Although people often lump the sale of alcohol and tobacco together, the arguments in favour of the alcohol ban are far stronger than for tobacco – given the documented evidence of harm reduction from the booze ban, and the relief it has offered to the public health system.
International comparison: India, Thailand, Greenland, certain regions of France, Panama and Sri Lanka have all also banned alcohol sales at various points during lockdown.
Rule 3: Exercise is permitted for only three hours per day, between 6am and 9am
Stated government reason: Justice Minister Ronald Lamola told Parliament on 5 May: “If the regulations allow jogging for the whole day, it means that for the whole day police will have to monitor people exercising. But, if there is a prescribed time, they can deal with the issues they are supposed to deal with during the rest of the day.”
Arguments in favour of the rule: As per Lamola’s argument, if there is a popular public space where people exercise – such as Cape Town’s Sea Point promenade – police can be deployed there for a limited period to monitor aspects like social distancing, and then be freed up to attend to other duties.
Arguments against the rule: The regulation unintentionally encourages large quantities of people gathering in the same area at the same time, producing congestion which seems to heighten public health risks rather than diminish them.
In certain parts of the country now, as winter approaches, almost half of the allocated exercise period now occurs in darkness, while it has also been suggested that the cold of the early morning poses further health risks, particularly for the elderly.
Rationality check: The Institute for Security Studies’ Gareth Newham is adamant that Lamola’s stated justification does not stand up to rational scrutiny.
“Why is it so important for police to monitor exercise? We still have a serious crime problem. For those three hours when police are watching people exercise, criminals will take advantage. What police should be doing is their normal patrol,” Newham told Daily Maverick.
“Police intervention at this time should be about communication and assistance. This moment should actually be a great opportunity for police to build up trust with the public, rather than the opposite.”
International comparison: In Paris, joggers are only allowed to go out before 10am and after 7pm. In some other countries like Spain, exercise is staggered, with certain groups of people – such as the elderly, parents with children, etc – allowed to go out for exercise at certain times.
Rule 4: Shops are only allowed to sell items which appear on the ‘essential goods’ list
Stated government reason: At the beginning of the lockdown period, Trade and Industry Minister Ebrahim Patel explained: “On the items that people can buy, obviously we wanted to keep the list as short and simple as possible so that we can do a quick turnaround at shops so that people spend the minimum amount of time there, and travel as infrequently to the shops as possible”.
Arguments in favour of limiting retail offerings: With the slight expansion of available goods to be sold in Level 4 lockdown, there were already reports of lengthy queues outside shops and packed malls. It is also clear that not all shopping centres are enforcing health measures like requiring customers to wear masks or dispensing hand sanitiser on arrival. In essence, the less incentive people have to go shopping, the better the chance that they will neither transmit or contract coronavirus at the shops.
Arguments against limiting retail offerings: The apparently arbitrary nature of what may and may not be sold is causing great frustration, as is the fact that different stores appear to be applying different restrictions. Particular anger has been expressed by parents at the prohibition applied in supermarkets on buying children’s toys or games – at a time when parents are arguably more in need of diversion for kids than ever before.
Rationality check: “Limiting which goods are allowed to be on sale might be justified if it could be argued that selling a certain good would bring people into a retail environment who would otherwise not be in that environment, thereby possibly increasing the spread of Covid-19,” UCT lecturer in ethics and critical thinking Jacques Rousseau told Daily Maverick.
“This is, however, a difficult case to make for some of our restrictions, as it seems to me unlikely that the number of people who head to a store to buy – for example – toys and games is anything more than negligible.”
As a result, Rousseau suspects the public health benefits are negligible, while the regulation comes with a significant cost: making regulations appear arbitrary, which decreases public confidence in the state’s response to the pandemic.
International comparison: Some parts of the US, such as the state of Vermont, have issued orders to large retailers only to offer essential goods for sale. Many countries, including the UK, ordered the closure of shops selling items deemed non-essential during lockdown.
Rule 5: The imposition of an evening curfew
Stated government reason: Justice Minister Ronald Lamola told Parliament: “It was assessed that when people are back from work and leave at the end of the day, there will be a temptation to go and visit friends and family. This will increase the burden on police.”
Arguments in favour of the curfew: The desire to minimise movement at night is a reasonable aspect of attempts to curb the spread of the virus, as is the desire to minimise movement during the day.
The government appears to believe that it was necessary to impose the curfew when lockdown was eased to Level 4 because more people would be returning to work, and the curfew is a way of ensuring that they go straight home after work rather than being tempted to socialise.
Arguments against the curfew: The fact that the curfew was only imposed during Level 4 lockdown, which was supposed to be an easing of restrictions, has caused much confusion – as it amounts to a more draconian prohibition than previously existed.
As reported by Daily Maverick, there appeared to be no previous evidence that people who were not essential workers were moving at night.
Rationality check: “Who assessed this?” asks the ISS’s Gareth Newham, in reference to Lamola’s curfew justification.
“What was the research, and to what extent is this going to be a problem?”
Newham says that the imposition of a curfew is the kind of drastic measure which might be expected under a State of Emergency, but not a State of Disaster.
“The only way it makes sense is in terms of making policing easier – but again, it immediately sets the police against the public,” Newham says.
International comparison: Saudi Arabia, Algeria, parts of France, Rwanda, Chile, Egypt, Cyprus, Senegal, Romania and a number of other countries have introduced night-time curfews at various points – but generally much earlier in their lockdown process.
Rule 6: The new regulations on which types of clothing may be sold
Stated government reason: Trade and Industry Minister Patel has defended the controversial regulations released this week determining which clothes may now be bought by saying that the list was drawn up in consultation with clothing industry stakeholders.
Arguments in favour of the restrictions: Government initially indicated simply that winter clothing would be allowed to be purchased due to the changing weather. As with the restrictions on non-essential goods, the purpose of restricting clothes sales is clearly to keep people out of shops as much as possible.
Textile unions and major clothing retailers have expressed satisfaction bordering on delight with the new regulations, and applauded the leadership of Patel (a longstanding friend of the textile unions).
Arguments against the restrictions: Where to start? The new clothing list has attracted confusion and mockery from all quarters due to its bizarre stipulations – such as that shirts may only be purchased if they are promoted “to be worn under jacket coats and/or knitwear”, and “crop bottom pants” may only be purchased if they are to be worn with boots and leggings.
The DA called the regulations “frankly mad”, and evidence of “the continued paternal obsession by Minister Patel and the ANC to dictate to South Africans what they can and can not do”.
Rationality check: “The ‘robust negotiations’ that informed the regulations are an immediate warning flag that the regulations might serve interests other than what the Disaster Management Act envisages,” says UCT’s Jacques Rousseau.
Rousseau says the requirement that certain types of clothing have to be promoted in a certain way will be “impossible to police, and regulations that cannot be enforced are a clear sign of those regulations being irrational”.
Adds Rousseau: “Requiring a retailer to advertise a T-shirt as exclusively for use as an undergarment will not impact on how people wear them, and how people end up wearing them is not clearly linked to controlling the spread of Covid-19. By contrast, if it is being suggested that ‘keeping warm’ is an effective safeguard against Covid-19, that should be the public message, accompanied by guidance regarding wearing such clothing as undergarments”.
International comparison: Clothes shops have been shuttered in a number of countries during lockdown, although online clothes shopping has widely continued, but it appears that no other countries have applied such specificity to what may and may not be purchased. DM