Opinionista Omphemetse S Sibanda 8 June 2020

High Court ruling on lockdown throws up intriguing questions on the limits of state paternalism

I do not see anything wrong with a paternalistic approach in the government’s response to the Covid-19 pandemic. There is nothing legally or morally wrong with the concept of paternalism.

The Pretoria High Court judgment in the case of De Beer v Minister of Co-operative Governance and Traditional Affairs has thrown a cat among the pigeons with its ruling regarding the constitutionality of Covid-19 regulations currently imposed in terms of the Disaster Management Act (DMA), and elicited mixed reactions. Two articles in Daily Maverick described the ruling as flawed and a disturbing judicial overreach respectively. 

“The upshot is a disturbing example of judicial overreach – the rate of infections is increasing exponentially and the last thing the country needs at the moment is a level of regulatory uncertainty, which is what this judgment will engender… [T]his judgment is unlikely to promote meticulous compliance with the kind of behaviour that will prevent a greater spread of infections,” said the latter article.

Others have received the judgment differently. DA leader John Steenhuisen described lockdown as a terrible and unforgivable mistake that put a stain on the presidency of Cyril Ramaphosa. According to Steenhuisen, President Ramaphosa must apologise to the nation.

Public discourse on the government’s Covid-19 response has been obsessed by the question of whether South Africa’s lockdown regulations and implementation, therefore, are lawful, necessary and proportional in an open and democratic society. I previously expressed the view that lockdown regulations do not mean that human rights and the requirements for the rationality of limitation of rights are suspended. This view still maintains despite my position in this opinion. So is my disdain at the human rights violations perpetrated during the enforcement of some of the regulations.

The rationality of lockdown regulations was central in the De Beer case. From the outset, Judge Norman Davis referred to the following quotation from “Day of Affirmation of Academic and Human Freedom” address, also known as the “Ripple of Hope” speech, by the then US Attorney-General Robert F Kennedy on 6 June 1966 at the University of Cape Town, whose essence is that the government’s responsibility and power to protect and preserve “the essential humanity of man” is not unlimited.

In a constitutional democracy, a government of the people by the people must have checks and balances, which are embraced in both the ideal of the Rule of Law and in section 36 of the Constitution of the Republic of South Africa. The critical discussion point for me is the rebuke by Judge Davis of lockdown regulations as a dangerous “paternalistic” response to the Covid-19 pandemic.

Kennedy said, “[E]ven a government by the consent of the governed, as in our Constitution, must be limited in its power to act against its people: so that there may be no interference with the right to worship but also no interference with the security of the home: no arbitrary imposition of pains or penalties on an ordinary citizen by officials high or low, no restriction on the freedom of men to seek education or to seek work opportunity of any kind, so that each man may become all that he is capable of becoming.”

The constitutional challenge to the Covid-19 regulations came through a multi-dimensional path, and as the Pretoria High Court was deliberating the issue in this case, there was already another constitutionality challenge waiting for the court to address. A tale of curious judgments in times of a nation facing a pandemic crisis is simply how one can describe the ruling by Judge Davis. Some parts of the regulations such as the “cautionary regulations relating to education, prohibitions against evictions, initiation practices… the closures of night clubs and fitness centres… as well as the closure of borders” are considered to be rationally and clearly connected to the objectives. [at para 7.14].

However, several regulations were considered by the court to be irrational and disconnected to the purpose. According to Davis, for example, “…it can hardly be argued that it is rational to allow scores of people to run on the Promenade but were one to set foot on the beach, it will lead to rampant infection”. Judge Davis found instances of irrationality to cause a “Constitutional crisis” for failing to pass muster the provisions of limitation clause covered in section 36 of the Constitution. [at para 7.15].

In a constitutional democracy, a government of the people by the people must have checks and balances, which are embraced in both the ideal of the Rule of Law and in section 36 of the Constitution of the Republic of South Africa. The critical discussion point for me is the rebuke by Judge Davis of lockdown regulations as a dangerous “paternalistic” response to the Covid-19 pandemic.

“This paternalistic approach, rather than a constitutionally justifiable approach is illustrated further by the following statement by the Director-General: ‘The powers exercised under lockdown regulations are for good. Therefore, the standard is not breached’ ”, noted Davis [at para 7.18]. Davis expressed agreement with an article written in South Africa’s legal practitioners’ magazine, De Rebus, arguing among others that the lockdown regulations failed to give effect to the Bill of Rights. And that the South African lockdown is not pro-human rights [para 7.20].

I do not see anything wrong with a paternalistic approach in the government’s Covid-19 response. There is nothing legally or morally wrong with the concept of paternalism, other than that those who are anti-paternalism turn to invoke its negative connotation associated with the medieval concept of patriarchalism.

The anti-paternalistic sentiments by Davis against lockdown measures are at times confusing, particularly after the learned judge [at para 4.12] noted his preparedness “to accept that measures were urgently needed to convert an ailing and deteriorated public healthcare system into a state of readiness, able to cope with a previously unprecedented demand for high-care and intensive care facilities should there not be a ‘flattening’ but an uncontrolled ‘spike’ in the rate or number of seriously affected patients, constitute circumstances”.

Also, after he quoted [at paragraph 3.5] the unreported judgment of his colleague Judge Neukircher in the case of Mohamed and Others v The President of the Republic of South Africa and others [Case no 21402/20, on 30 April 2020] who asserted that during this pandemic the public is called upon to make some sacrifices “in the name of the good” and in the spirit of Ubuntu to make sacrifices to their fundamental rights (paragraph 75). Reading the entire judgment, it is apparent that Davis does not support the paternalistic sentiments present in Neukircher’s ruling.

What is wrong with paternalistic approaches to a global pandemic such as Covid-19? John Stuart Mill in his essay titled “On Liberty”, which was first published in 1859, expresses paternalism as “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant”.

I do not see anything wrong with a paternalistic approach in the government’s Covid-19 response. There is nothing legally or morally wrong with the concept of paternalism, other than that those who are anti-paternalism turn to invoke its negative connotation associated with the medieval concept of patriarchalism. (In medieval times patriarchalism used the paternal analogy to justify the privileges of the feudal ruling elite over the common people – government having power over its people just as a father has power over his children in a coercive manner). 

It is unfortunate that Davis did not with clarity and certainty address the distinction between benefit-promoting and harm-preventing forms of paternalism in coming to his decision that the government’s Covid-19 responses are paternalistic and not justified under section 36 of the Constitution. The High Court’s decision seems in part counter to transformative constitutionalism and social justice. 

The Covid-19 regulations are certainly not the first to introduce paternalistic considerations to protect the citizens of this country. In fact, constitutional paternalism is enshrined in the Constitution and there is also a flurry of paternalistic legislation in South Africa. For example, the constitutional provision on the right to housing has paternalistic motivations as it goes against the common law of freedom of contract by stating that “No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions”. Further, restricting the ability of individuals to obtain life-saving medicine without a prescription or accessing clinically unproven medicine is paternalistic in this sense. 

The current debates on whether schools should open or not amid Covid-19 are not devoid of paternalistic reasons. One particular “Question and Answer” discussion in the Harvard Coronavirus Update stands out for me, and it involves an interview with former secretary of education for Massachusetts, Paul Reville and the Francis Keppel Professor of Practice of Educational Policy and Administration at Harvard Graduate School of Education. The interview discussed among others the impact of school closures amid Covid-19. When asked about the silver linings of Covid-19 as a public health crisis, Reville stressed that “in this situation, we don’t simply want to frantically struggle to restore the status quo because the status quo wasn’t operating at an effective level and certainly wasn’t serving all of our children fairly. There are things we can learn in the messiness of adapting through this crisis, which has revealed profound disparities in children’s access to support and opportunities. We should be asking: How do we make our school, education, and child-development systems more individually responsive to the needs of our students…? Let’s take this opportunity to end the ‘one size fits all’ factory model of education.” 

The social justice and paternalistic sentiments expressed by Reville have been expressed by stakeholders in our education sectors – some fearing that it is too soon to re-open schools as the level of protection to learners against Covid-19 is inadequate.

Contrary to the ruling by Davis, paternalistic justifications in government actions cannot be simply invalidated as unconstitutional, if they have merit. If paternalism is to justify certain measures to deal with the fallout of Covid-19, then provisions of both scientific and empirical evidence should suffice as justification and acceptable in terms of the limitation clause contained in section 36 of the Constitution. Judicial assault on paternalism will not assist in the fight against Covid-19.

This idealism has played itself out in the government’s Covid-19 response. Fighting a good fight, even sometimes a fight with no principle because the enemy is invisible may be necessary. What hope was there if the government did not act as it did?

In the “Ripple of Hope” speech quoted by Judge Davis at the beginning of his judgment in the De Beer case, he addressed the four dangers in a society that in my view can explain both the brevity and misstep taken by the government under the leadership of President Ramaphosa to deal with Covid-19 challenges using lockdown regulations. And I would briefly speak to these dangers below in juxtaposition to the De Beers ruling:

First is the Danger of Futility: “The belief there is nothing one man or one woman can do against the enormous array of the world’s ills — against misery, against ignorance, or injustice and violence. Yet many of the world’s great movements, of thought and action, have flowed from the work of a single man… Each time a man stands up for an ideal, or acts to improve a lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope, and crossing each other from a million different centres of energy and daring those ripples to build a current which can sweep down the mightiest walls of oppression and resistance.”

This idealism has played itself out in the government’s Covid-19 response. Fighting a good fight, even sometimes a fight with no principle because the enemy is invisible may be necessary. What hope was there if the government did not act as it did?

Second is the Danger of Expediency: “Of those who say that hopes and beliefs must bend before immediate necessities. Of course, if we must act effectively we must deal with the world as it is. We must get things done.” 

Was the government expected to be derelict as it was in the 1918 flu pandemic? What about the dangers that were lurking in the society amid Covid-19? In his 1984 doctoral thesis titled “Black October: the impact of the Spanish influenza epidemic of 1918 on South Africa”, which studied the impact of the 1918 flu pandemic in South Africa, Howard Phillips reveals that the flu pandemic had a severity that “paralysed everyday life”, particularly in the areas of the Witwatersrand gold mines, Cape Town, Kimberley, Bloemfontein and the Transkei.

“In Cape Town’s overcrowded conditions Spanish flu (perhaps assisted by a spell of changeable weather) spread rapidly among the civilian population, especially in District Six and the Malay Quarter”.

Phillips notes that Bloemfontein suffered greatly from the virulence, with people like the Provincial Medical Officer, Dr P Targett-Adams, saying that “the disease was highly infectious and was best prevented by remaining in the open air as much as possible”.

Third is the Danger of Timidity: “Few men are willing to brave the disapproval of their fellows, the censure of their colleagues, the wrath of their society. Moral courage is a rarer commodity than bravery in battle or great intelligence. Yet it is the one essential, vital quality for those who seek to change the world which yields most painfully to change timidity and comfort).”

The ANC-led government has never before been faced with a challenge like Covid-19, that tests the true leadership traits of the incumbent president during this time of crisis. The opposition political rumbling has expressed disapproval of Ramaphosa’s Covid-19 interventions:

“[T]he fact remains, this extended hard lockdown has been the ANC’s costliest mistake yet. It will be measured in lives lost to South Africans and, if facts prevail over fear, in votes lost to the ANC,” retorted Steenhuisen in a recent Daily Maverick article. Some of the decisions taken by the government include personal courage to do what at the time was necessary to ameliorate the lurking danger of Covid-19 even to the disapproval of the many, as people did against Minister Nkosazana Dlamini-Zuma.

Fourth, is the Danger of Comfort: “The temptation to follow the easy and familiar path… There is a Chinese curse which says ‘May he live in interesting times.’ Like it or not, we live in interesting times. They are times of danger and uncertainty, but they are also the most creative of any time in the history of mankind. And everyone here will ultimately be judged — will ultimately judge himself — on the effort he has contributed to building a new world society and the extent to which his ideals and goals have shaped that effort.” 

President Ramaphosa has shown the courage to face public opposition with regard to the handling of Covid-19. To date, the tide of progress against Covid-19 can never be regarded as totally meaningless.

There are many things by which the administration of Ramaphosa will ultimately be judged in the future. One of those is how he dealt with the spread of a communicable disease like Covid-19 to secure public health rights while at the same time having to deal with his actions’ fallout with other constitutionally protected rights.

The De Beer ruling is a countermeasure to Covid-19 responsive measures. The ruling demonstrates a case of absence of judicial restraint and the burden on the government to justify the paternalistic elements of the lockdown regulations. The question remains: what are the acceptable limits of state intervention to protect citizens and residents from the dangers of Covid-19 and other pandemics? It remains to be seen if the government appeal will successfully overturn the De Beer ruling.

“There would have been a lot to learn from this judgment if it were more clear, concise, accurate, professionally reasoned and persuasive. I’d be surprised if in its current form it survives the scrutiny of a higher court,” former public protector Thuli Madonsela is reported to have tweeted. DM

Gallery

Comments - share your knowledge and experience

Please note you must be a Maverick Insider to comment. Sign up here or if you are already an Insider.

SCORPIO EXPLAINER

VBS theft – the case against Limpopo ANC’s Danny Msiza and Florence Radzilani

By Pauli Van Wyk