FMF CEO Statement: On the declaration of the illegality of lockdown regulations - de Beer versus Minister of Cooperative Governance (21542/2020) [2020] ZAGPPHC 184

FMF CEO Statement
03 June 2020

The judgment delights me. It is a great tribute to the quality and independence of our judiciary, and, if it stands, has far-reaching implications. It extends the "irrationality principle" beyond merely requiring a rational connection between laws and objectives, to requiring rational consistency between aspects of laws. The immediate effect is that many manifestly irrational "lockdown" provisions have been declared unlawful and must become "rational", or abandoned.

Proudly, we in the Free Market Foundation (FMF) published many articles, statements, podcasts and social media explaining and lampooning irrational and unlawful lockdown regulations. To the extent that some provisions might be lawful, most are inconsistent and eccentric. It is hard to believe that some, such as the supposed prohibition of cigarettes without old receipts, or jogging on boardwalks but not beaches, or wearing a mask whilst driving, are the product of sober minds.

It is tempting for the uninformed populace to assume that the tsunami of incoherent provisions is supported "by science", or that there are informed people somewhere who know what they are doing. I asked two large supermarket managers such simple questions as whether chewing gum is "food", or a poop scoop is "essential". Both shrugged their shoulders and lifted their hands saying that they had no idea what they were allowed to sell. One allowed shoppers to buy anything; the other cordoned off some items.

The Millennium Award for Mindless Law goes to Police Minister Cele. He decided whimsically that coronaviruses don't infect smokers with old receipts. No one, including himself, has the slightest idea what his receipt declaration (as opposed to legitimate law) means. Does any old receipt stave-off the virus even if it does not itemise cigarettes? Does one receipt legitimise limitless quantities? Does a handwritten backdated receipt suffice? Does his whim apply to receipts issued by illicit traders with whom the government has an illicit affair? And anyway, if our "experts" know why month-old cigarettes are healthier than new ones, why not share their smoke and mirrors theory with the rest of the world where tobacco sales remained lawful?

Under apartheid the government required the police "force" (as it was known) to enforce loony laws. Then we got a police "service" (its new name). Instead of enforcing irrational draconian regulations, the police supposedly replaced force with service. They should explain and encourage healthy behaviour, as police do in liberal Sweden. Our police and soldiers should explain anti-social (sic) distancing; and distribute gloves, masks and sanitiser. No draconian law is necessary, especially when all it achieves officially is to slow rather than reduce infection rates.

The government has 14 days in which to concoct potentially lawful despotic regulations, or to adopt rational minimally coercive measures that respect human rights and dignity.

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