LOCKDOWN: EXTENDING THE AMBIT OF PERMITTED ACTIVITIES!

Basic human rights enshrined in the constitution are inadvertently restricted in a ‘national disaster’ declared earlier this month.

A national disaster, however, differs from a ‘state of emergency’ in so far as under the former and prevailing scenario, constitutional rights remain sacrosanct.

The declaration was followed by the gazetting of regulations by the Minster of ‘Coop’erative Governance and Traditional Affairs, effectively confining the majority of citizens to their homes with limited exceptions which are by now well documented.

While the misrepresentation by the Minister of Health of the regulations as permitting “dog walking and jogging” is already the stuff of legend, his intentions were pure although misguided, as such activities would have to be determined, ‘listed’ and published by the Minister prior to being legally permissible.

The regulations further seek to impose a fine or imprisonment of up to 6 in terms of s11G (despite the official ‘Guidelines’ mentioning only 1 month).

It may be tolerable in the early days but as time progresses and in the event of an extension, cooped up people will become highly agitated if ‘the list’ is not expanded to temper restriction of movement (as distinct from association or congregation), as has been the case in many other countries, where ministerial and legal teams properly and painstakingly considered human rights and extrapolated the list to permit various Covid-19 contagion benign activities.

Agitation leads to rebellion and while we are by no means inciting transgression, it is important to note that unlike in a state of emergency, arrestees cannot be detained without a trial and are entitled to be released on bail and/or certain conditions.

The regulations further seek to indemnify the enforcers from loss or damage caused by bona fide acts or omissions. These provisions are draconian with insufficient consideration in terms of exceptions and human rights, despite the availability of numerous global lockdown templates to call upon.

In light of our law enforcers’ checkered history of bribery and abuse, we can rest assured that if and when arrests are made, any attempted prosecutions will face a plethora of constitutional challenges and damages claims, which will further tax pillaged state resources.

Proactively and systematically extending the list to include Covid-19 contagion-benign activities such as cycling, running, walking alone or with a household member (or a dog for that matter), is surely a no-brainer.

Accordingly, we invite readers to like, follow, share and/or distribute this article in an endeavour to impress upon the aforesaid minister, the need to extend the list to include as many activities as reasonably possible.

If the list is not extended, we intend to prepare a draft template in line with the lockdown provisions applied in the majority of countries and petition the minister with your support.

By Stephen Wingate-Pearse – Attorney, triathlete and ‘dog-jogger’.