7 June 2020
Judge Norman Davis this week drew both praise and scorn from commentators and legal minds for his ruling that lockdown regulations were unconstitutional, and therefore invalid.
He said government’s lockdown laws weren’t well thought out and went against the Bill of Rights.
This is the beauty of South Africa’s democracy, that a private citizen can take the state to court and get a fair hearing.
Some have said the judgment is flawed and will not survive the scrutiny of the appellate courts. That is not the point. The point is that the government must at all times keep to the spirit of the constitution and the citizens must have avenues for recourse if they feel their leaders have dropped the ball.
We often pride ourselves in our Bill of Rights, but this is not what has made our constitution stand the test of time. No amount of free speech, rights of assembly and free press can prevent South Africa from being auctioned off to the highest bidder if we have a nonchalant judiciary.
All failed states have in their constitutions a just Bill of Rights, but in the absence of an independent judiciary, a Bill of Rights is just words on a piece of paper.
The judiciary has frequently been called “the least dangerous branch of the state” and this rings truer to South Africa.
Judge Davis’s judgment may very well be overturned and set aside by a higher court. But whatever decision a higher court arrives at, what we know is that the supremacy of the constitution will be reaffirmed and the spirit of Bill of Rights engendered.
This Bill of Rights must be the focal point of every action and decision taken by the government, even in a crisis situation. The same Bill of Rights should guide the reopening of schools in a safe and humane manner.
The glee over lucrative contracts to supply personal protective equipment (PPE) to schools and other government institutions must not be a free-for-all bonanza. The government, which is empowered by the constitution to safeguard the national purse, must ensure it gets value for money in the procurement of these essential goods. Parliament as the law-making body must also ask difficult questions about the procurement of PPEs and hold the executive to account.
The transformation of South Africa’s economy is a constitutional imperative and public procurement must assist in redressing past injustices as prayed for in our founding document.
When all else fails, the constitution must prevail and all arms of the state must do their bid to reconstruct a more equitable South Africa.
Another recent ruling is significant to mention. The apex court in the country correctly rebuffed trade union Solidarity’s bid to have direct access to the Constitutional Court to challenge the Department of Tourism’s stance on black empowerment.
The union sought to declare as unconstitutional the department’s COVID-19 directive, which sets out that BBBEE will be a consideration when providing financial relief to small businesses.
Black economic empowerment cannot be an abstract, but must find meaning in the actions and government policies of government, and defended in the courts if needs be.