Minister Nkosazana Dlamini-Zuma has again entertained South Africans with a bewildering new lockdown regulation that made this lawyer's head spin.
As is by now well-known, persons are prohibited from going onto a beach in a municipality designated as a COVID-19 "hotspot". According to the gazetted regulation (to paraphrase a former president, read properly), a 'beach' is a "sandy, pebbly or rocky shore between the high-water mark and low-water mark adjacent to the sea or an estuary mouth extending 1000 metres inland from the mouth and within 100 metres of the high-water mark, excluding private property, including the sea and estuary themselves adjacent to the beach."
We must bear in mind that the impetus for this is completely fallacious. We have lone beach wanderers being arrested and jailed, despite not posing a threat to anyone. The beach is probably one of the safest places to get together, usually being expansive with a fresh sea wind blowing. It is preferable to many other indoor and outdoor gathering places, including our own homes!
With that in mind, isn't it wonderful how government can just define what a "beach" is to its liking? 1001 metres inland from the estuary mouth and you're suddenly no longer on the beach and can enjoy the sunset to your heart's content. A few steps back toward the ocean and Bheki Cele will come down on you harder than the South African police have ever come down on real violent criminals.
And if you happen to own a piece of property that includes part of a beach, that is no longer a beach! It's just a sandy part of your property that happens to border the ocean. What an interesting definition of 'beach' indeed.But don't take this latter critique the wrong way. It's actually promising that private property has been excluded from the prohibition on beach gatherings as it might offer at least some relief to tourist destinations that happen to own parts of the beach. Relief is certainly what South Africa’s tourism sector needs now after the attempted murder on its life by government during the holiday season in December 2020.
But this relief comes late for the people of Thesen Island -- private property -- in Knysna's estuary, who enjoyed their holiday kite-surfing and relaxing on their boats, only to be molested by government and, subsequently, prohibited from going onto the water.One day government acts a certain way, and the next day it acts another. This is the very thing that is not supposed to occur in societies that apparently subscribe to the Rule of Law, which is said to suppress arbitrariness. But during the lockdown, we have seen precious little of that. Government appears to be doing as it likes.
It is now well-known that South Africans' constitutional rights may be legally limited. What is less well-known is that there are certain standards of conduct in the Constitution with which government must always comply, regardless of context or circumstance. One of these is contained in the founding provisions -- section 1 of the Constitution. This standard is none other than the Rule of Law itself, entrenched as a supreme value in South African governance.
The Rule of Law, as a legal doctrine, is aimed primarily at creating certainty and ensuring fair play in the relationship between private persons and government. It is often contrasted with the "rule of man", where the passing whims and passions of civil servants -- a minister of cooperative governance, for instance -- and their supporters determine how they conduct themselves in matters of state.
Among the practical requirements of the Rule of Law is that the legal rules South Africans are expected to comply with on a daily basis must be clear and understandable, which speak for themselves, and these must also be reasonable. Reasonableness could be ascribed with two meanings in this context: Firstly, to the ordinary person, the legal rule must appear appropriate taking into account all the relevant circumstances; and secondly, the legal rule must be rational (it must be related to some mischief that it intends to solve), it must be proportional (it must do no more harm than absolutely necessary), and it must be effective (it must in fact be capable of achieving its chosen ends).
Does the prohibition on beach gatherings seem appropriate to the ordinary South African, bearing in mind that people are still allowed to queue in shopping centres and elsewhere? Does the beach gathering prohibition appear rational in that it is in fact related to curbing the spread of COVID-19? Does the beach gathering prohibition appear proportional -- was there nothing less invasive that government could have done instead? Finally, is the beach gathering prohibition effective -- will the spread of COVID-19 subside because a kite surfer couldn't go out on the waves during his holiday?
In the controversial De Beer judgment of Judge Norman Davis last year, he indicted government for its paternalistic and unconstitutional approach to the lockdown and its regulations. Government did not take into account the safeguards and values contained in our highest law when it designed these regulations. Since then, it appears government has not taken Judge Davis' remarks to heart. It continues to adopt hopelessly unreasonable regulations that make it appear as if government is simply on a power trip wholly unrelated to COVID-19.
If ever the Constitution is necessary, it is during trying times like a global pandemic. If ever we insist that government adhere to constitutional prescripts hook, line, and sinker, it is now. Otherwise tyrannical government might soon prove to be a greater threat to our liberty and prosperity than COVID-19 could ever be.