IRR to Presidency: you are on the wrong side of the law, and we are ready to join legal challenges against your government

Press Release 

The Institute of Race Relations (IRR) will soon be writing to the Presidency advising it to tread carefully in view of strong and valid legal arguments about the manner of the enforcement of the lockdown.

IRR Deputy Head of Policy Research Hermann Pretorius said the IRR would consider joining as a litigant or as an amicus curiae (or friend of the court) in any action by civil society that advances the cause of liberty.
 
“The government is facing a litigatory crisis of its own making,” Pretorius said, adding that the IRR was “very encouraged by the reinvigoration of civil society” in stepping up to protect constitutionalism and the rule of law in South Africa.

Pretorius was speaking at the end of an online media discussion with Advocate Erin-Dianne Richards, hosted by the IRR this morning.

Richards and fellow advocate, Nazeer Cassim SC, gained wide public attention earlier this month when they wrote to the Presidency requesting clarity on the powers exercised by the National Coronavirus Command Council in imposing lockdown regulations on South Africa.

Advocate Richards said today that the absence of sufficient oversight of the workings and decisions of the National Coronavirus Command Council (NCCC) was a vital constitutional concern, as it pointed to the executive’s having abused its powers under the Disaster Management Act.

The council was “running the country on behalf of 60 million people”, and the concentration of power in the NCCC meant society “cannot properly scrutinise the rationality” of its decisions.

Had the NCCC not been formed, South Africa would still have had a lockdown, but under more rational and democratic conditions.

“This is where lawfulness and constitutionality matter.”

She said it was worrying that, where abuse of power “seems absolutely rampant”, and the country had been “devastated over eight weeks”, Parliament “has taken no action to assert its oversight role”. She stressed that her concerns related to the conduct of all political parties, not only of the government.

Advocate Richards also challenged citizens to assert their “agency”.

“The Constitution can protect citizens, but society must also protect its Constitution, and we have not done this. We have not protected it by arming ourselves with knowledge.”

There was a need for educating young South Africans about the importance of the Constitution, the rights it conferred, and what was meant by the rule of law. She hoped lawyers, too, would “write more in the public domain” on these pressing questions.

She said she and Cassim chose to write to the Presidency in April after having attempted to prompt political parties and civil society organisations to take a public stand on the constitutionality of the NCCC and its lockdown decision-making. “Only when that failed and we became concerned that that debate was dead did we decide to write the letter. We wanted to reinvigorate the debate.”

Advocate Richards made it clear that she and Cassim had been “prompted to step out of our role” as advocates in writing directly to the Presidency because of the “extraordinary circumstances” that arose because of the absence of any other challenge.

However, once the “dialogue started, we withdrew, as the extraordinary circumstances were no longer there”.

She argued that citizens were “free of the ethical minefield” that advocates were compelled to negotiate and were thus “more powerful”. She added: “Society needs to do this, and stop delegating to politicians and others.”

It was clear from government statements that the lockdown was “not only about the virus”. It was “politically natural for people to capitalise on the crisis”. While this was not “malicious” but a token of “arguably more effective politics”, it was being used as “an opportunity to cement ideology”.

“As for being ethical, I would say no,” she said.

Advocate Richards signposted as particular concerns the application of regulations on digital surveillance, and the state’s threatening to enforce treatment on its terms.

“These are massive infringements that are not getting attention,” she warned.

The discussion with Advocate Richards follows the release of the IRR’s report, Keeping Liberty Alive, which alerts South Africans to the vital importance of examining, and countering, the threats the lockdown and the mechanisms the government has employed to enforce it pose to citizens’ political and economic freedoms.
Pretorius said after the media discussion: “Government is losing the argument in the court of public opinion and, being on the wrong side of the law, it is likely to lose the argument in our courts of law.

“Government has squandered the initial goodwill of the people through its unconstitutional handling of the Covid-19 pandemic and has pushed South Africans to breaking point, and into poverty. Government continuing on its current course places it and civil society on a path of confrontation – a confrontation the government is set to lose. It is imperative for President Ramaphosa to end his government’s abuse of power and of the Constitution. If President Ramaphosa does not do this, the people of South Africa will do it for him.”

• Watch the live conversation here.
• Listen to Hermann Pretorius's English and Afrikaans comment. 

Media contact: Hermann Pretorius, IRR Deputy Head of Policy Research – 079 875 4290; hermann@irr.org.za
Media enquiries: Michael Morris Tel: 066 302 1968 Email: michael@irr.org.za
Kelebogile Leepile Tel: 079 051 0073 Email: kelebogile@irr.org.za
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