Lockdown Continued: Tonight’s announcement is not a case of black-and-white!
While everyone waits with bated breath in anticipation of whether or not tonight the president will announce the end of the ‘lockdown’ on the 30th of April, we provide the lowdown on lockdown followed by what we can expect within the realms of the law, at least.
“Lockdown” is a term allegedly derived inter alia from the depths of a US penitentiary in 1973. Lockdowns have never been applied on a national, regional and, certainly not, at a global level before in response to pandemics—especially not with quarantine being the ‘go-to’ measure. It is analogous to martial law being imposed by the state as a preventative measure in certain instances and, in context, purportedly to protect society from itself.
It’s therefore no surprise that China shot out of the gates to adopt this measure, and a ‘hard’ one at that, as its population has been under martial law for millennia, with no constitution to protect it.
Many constitutional countries have followed suit softly and progressively, applying regulations mindful of their own human rights—countries including the US, UK, Australia and New Zealand.
The legal lockdown vernacular in these more progressive countries jurisdictions is akin to: “Stay at home unless you are: going to work, shopping for essential supplies such as groceries; going out for personal exercise in the neighbourhood or attending medical appointments…”
In the UK, people are allowed to leave home with a “reasonable excuse” and the authorities go even further to include: “the need- to obtain basic necessities, including food and medical supplies; to exercise either alone or with other members of their household; to seek medical assistance; to travel for the purposes of work or to provide voluntary or charitable services…”
In South Africa, the measures were ‘to a degree’ initiated in terms of the Disaster Management Act, which defines a disaster as:
“(b) of a magnitude that exceeds the ability of those affected by the disaster to cope with its effects using only their own resources.”
The jury is out as to whether the situation could even vaguely have been defined as a “disaster”, when it was declared in March and, further, why our Government chose a ‘hard’ or draconian lockdown, without due regard for our constitution and the progressive templates applied by other constitutional jurisdictions. We have no doubt that this aspect will come under severe scrutiny by the courts, should the state seek to enforce any provisions of these regulations, directions and the like.
This is relevant not so much in so far as the past decisions are concerned (as there is no point in crying over spilt milk), but rather regarding future lockdown decisions, government intervention and the response thereto.
Brazil for example, which also has a constitution and where governors imposed a hard lockdown, found and continues to finds itself in the anomalous position of having to deal with mass protests, even more ironically supported by its own president.
Furthermore, even if the justification for the initial decision to declare the lockdown may have been sought in urgency, in a democracy like ours, parliament should surely be called upon to participate in the decisions regarding extensions and relaxations. It would appear that the DA has now cottoned on to this so no need to belabour the point any further.
Reverting to the vernacular—the regulations passed on the 25th of March 2020 entrench ‘lockdown’ into our law:
“Lockdown means the restriction of movement of persons during the period which this regulation is in force and effect… and during which time the movement of person is restricted;”
Therefore, if the President was to merely ‘lift the lockdown’ so to speak, the regulations restricting movement would effectively have no force and effect and we would all be free to move freely. This is highly unlikely as the risks would be unmitigated.
However, with or without the lockdown terminology, it is not a case of black-and-white, but a question of degree and the regulatory shades of grey to follow.
But let’s wait and see how the Presidency handles it forearmed with the legal context.
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