Beware the constitutional void during the lockdown

The lockdown has begun. Only movement deemed "essential" is now allowed – a significant limitation if not suspension of our right to freedom of movement guaranteed in section 21 of the Constitution. This opens a can of worms that our constitutional democracy might be ill-equipped to deal with.

Imagine the following: You have been beaten senseless by people in uniforms. They did not believe you when you said you were on your way to the pharmacy to purchase medicine. Your insistence that you were acting well within the confines of the coronavirus lockdown regulations angered them. This lead to an unequivocal infringement of your right to freedom, security and bodily integrity under section 12 of the Constitution. The uniforms instruct you to go home immediately or they will arrest you.

Bloodied, you want to immediately see your family attorney, but you know that is not an essential business. This means that the attorney’s office is closed, and you are not allowed to drive there. You go home and call your attorney who is at home. Your attorney sympathises with your case, but reveals that for the duration of the 21-day lockdown, attorneys can do preciously little to assist you: The courts have significantly scaled down their operations, the attorney cannot access their offices, interns or associates, and therefore cannot print and collate all the necessary documentation in line with the requirements in the Uniform Rules of Court.

You are left without a remedy, at least until the lockdown is lifted. And this might be longer than the anticipated 21 days. If you are arrested instead, the stakes in this constitutional void increase tenfold.

None of this is to imply that law enforcers or soldiers will engage in this conduct. But the protections of our rights in the Bill of Rights exist precisely for such eventualities, no matter how unlikely or rare. Access to justice is an entitlement that may not be extinguished in a crisis. The courts must always be open and available to South Africans to challenge violations of their liberty and of the law, particularly if government is the accused party.

Attorneys are the first port of call in this situation. They bring access to justice and judicial oversight to life. But without being allowed to access their equipment – videoconferencing facilities, printers, etc. – or their support staff, their job has been rendered next to impossible for the duration of the lockdown.

Civil liberty groups cannot even challenge the legality of the lockdown itself. To do so, they will need to brief attorneys, who must comply with a host of formalities. They need to submit signed and commissioned affidavits, which cannot be done remotely. Clients will thus need to go to a police station to have their affidavits commissioned, after which they will need to take it to the attorney's home where it will be scanned in terms of the CaseLines system. But many, perhaps most, attorneys do not have scanners or printers at home, particularly in rural areas.

Assuming all this can – but it cannot happen, as visiting an attorney’s home will not be considered essential in terms of the regulations – there will need to be a hearing. The lawyers on both sides, their clients and the judge, will need to tele- or videoconference one another. This requires sophisticated facilities. Those of us who use Skype regularly know that it is nowhere near reliable enough for a judicial matter. Imagine if the advocate for the applicant loses their connection to the internet; or extended loadshedding sets in?

What about indigent clients who cannot even begin to jump through all the additional hoops that might be required to access justice during this period? Legal services are already out of reach for millions. Those who might in theory have access to an attorney will spend their money on food and hand sanitisers – not on copious amounts of data and airtime to maintain constant contact with their attorney. It is an untenable situation.

To their credit, the courts have issued guidelines and directives hoping to ease this process. Provision is made for digital hearings and somewhat lowered formality requirements. Exceptions for urgent applications, domestic violence and maintenance disputes have also been issued. But other, no less important cases, such as challenges to evictions (particularly during a lockdown), cannot be heard during the 21 days.

This has created a constitutional void. In effect, the prized Constitution that South Africa adopted in 1996 after years of repression, including two states of emergency in the 1980s when life, liberty, and property were routinely infringed by government, does not apply. Officially and on paper, the supremacy of the Constitution has gone unaffected, but if in practice we cannot set the process in motion to realise and operationalise the provisions of the Constitution, then constitutional supremacy offers cold comfort to those whose rights have been infringed.

Many of the measures that government has instituted to curb the spread of the coronavirus and the surrounding panic are justifiable. In some ways, the South African government has outperformed its counterparts around the world.

But sections 1(c) and 2 of the Constitution declare unequivocally that the Constitution and the Rule of Law are supreme – overriding all other considerations – and that any laws or conduct that are inconsistent with it are void and unconstitutional. This constitutional supremacy requires the continued operation of the legal community: The superior and magistrates' courts, law firms, advocates, the State Attorney’s Office, and law clinics for the disadvantaged must remain available.

It might be too late to bring about wide-ranging changes to the present lockdown. But once the lockdown ends, and when similar crises hit South Africa in the future, we need to be ready to ensure that the Constitution's blanket of protection is not ripped from any South Africans who want to vindicate their rights.
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