Winds of change in global politics cannot come at the expense of individual liberty
The COVID-19 pandemic has bought many restraints on individuals’ self-determination. Lockdowns have become a serious threat to individual liberty on a global scale.
Many of the restrictions have been said to being of a disproportionate and arbitrary nature. Constitutionally protected freedoms were denied many due to state of public health. In South Africa, the Disaster Management Act, as well as Regulations gazetted under this legislation, is meant to manage the pandemic. However, this Act was subject to legal actions.
In June 2020 the North Gauteng High Court ruled, in De Beer and Others v Minister of Cooperative Governance and Traditional Affairs (21542/202), that lockdown regulations were unconstitutional and thus invalid for a reason that “in a substantial number of instances are not rationally connected to the objectives of slowing the rate of infection or limiting the spread thereof”.
It was also held that regulations “do not satisfy the “rationality test”, their encroachment on and limitation of rights guaranteed in the Bill of Rights contained in the Constitution are not justifiable in an open and democratic society based on human dignity, equality and freedom”. Judge Norman Davis slammed several lockdown regulations by declaring they were "not only distressing, but irrational".
During appeal, CoGTA Minister Dlamini-Zuma argued to support validity and constitutionality of regulations and that advice was taken from medical and scientific experts. She vehemently denied that decision to declare a National State of Disaster was based on unconfirmed, unverified and incorrect medical advice.
The Supreme Court of Appeal did set aside high court decision. SCA ruled “the respondents ignored the fundamental principle that an applicant's case must be set out with sufficient specificity, clarity and supporting admissible evidence”.
Respondents were dissatisfied with this decision. They alleged that SCA judges have been “biased” in favour of CoGTA and therefore failed to deal with actual arguments before the Court. They contended that a burden of proof for scientific evidence was on the Minister, and she uniformly failed to provide any satisfying evidence supporting argument that she was properly advised by experts. She also failed to provide any affidavit from any expert in support of her claim.
SCA judges were said to have been “witch hunting” COVID-19 denialist, especially that the respondents’ application to have five SCA judges recuse themselves was denied.
First respondent was declared to have been “crude, gratuitously insulting, clearly contemptuous and intended to denigrate this court.” SCA ordered that the judgement be referred to the attention of the National Director of Public Prosecutions for a possible criminal case against first respondent. The court pointed that “unjustifiable defamatory and scurrilous utterances against judicial officers will not be tolerated.” The question may arise to some lay persons: Are the courts above criticism?
Some contended that all businesses, services and shops be allowed to operate, subject to reasonable precautionary measures. They hold that government power should always be challenged, scrutinised, checked and balanced, particularly during disasters such as this pandemic.
In a free and open democratic society, individuals have a right to legally challenge government authority without fear, threat, and intimidation. Normally, people value to be autonomous and to choose from two or more available options and doing so unconstrained by external restraint and hindrance.
With freedom does come responsibility. Individuals are bound to tolerate the freedom of others, and not to prejudicially affect their rights. People are required to uphold state laws, and these laws should ultimately promote individual liberty by defining responsibilities.
Laws that are bad, autocratic, and undemocratic cannot guarantee individual liberty. Such laws result in citizens flouting government authority, and in an emerging anarchism. History reveals that when this occurs, government tend to become even more dictatorial and autocratic. Secessionism or rebellion is often the next step.
Good law must be validly adopted in terms of universally adhered law-making principles. Most countries have written constitutions specifying legislative powers. A good law should be both feasible and desirable. The state should be capable of enforcing the law, and individuals should be able to comply with that law. State laws should be good, reasonable and justifiable.
This era of global COVID-19 pandemic is almost fading but was very challenging. There are so much political and philosophical tensions cleaving in society that reveals a struggle between the government and citizens. The cause of these tensions needs scrutiny.
It’s a norm that governments occupy higher authority than individuals in society. As powerful as it is, however, government conduct is not immune to legal scrutiny.
Constitutional democratic government authority should be exercised in accordance with the principle of the rule of law and not to act autocratically.
Most people are demanding a restoration of individual freedom in society. They believe COVID-19 should not be used as a “scapegoat” to take away individual liberties and introduce a state of totalitarianism. To them, forcing vaccines on everyone is politically nefarious.
The global pandemic came with a hurdle between government authority and the rights of individuals in society. Restrictions seems to be never-ending. This pandemic has become part of life – it is here to stay, and therefore many restrictions should end.
COVID-19 is real. Everyone suffered in one way or another. Sadly, some lost their lives. However, this should not become an opportunity to control people’s lives, presumably in pursuit of a sweeping authoritarian agenda. Individual liberty remains important. Nelson Mandela once said, “our single most important challenge is therefore to help establish a social order in which the freedom of the individual will truly mean the freedom of the individual.” Return to normalcy, a good place to start is by promoting individual liberties.
is a non-practicing advocate of the high court. He is currently pursuing a doctoral degree. He writes for the Free Market Foundation.
Publish date: 25 February 2022
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The views expressed in the article are the author’s and are not necessarily shared by the members of the Foundation. This article may be republished without prior consent but with acknowledgement to the author.