– Above: Thuli Madonsela in front of the Old Main Building at Stellenbosch University.

Prof Thuli Madonsela, social justice chair at Stellenbosch University (SU), deep dived into the North Gauteng High Court judgement in the matter between De Beer and Others versus the Minister of Cooperative Governance and Traditional Affairs (COGTA) at a digital expert roundtable on Friday 19 June 2020.

The roundtable formed part of broader conversations taking place under the social justice chair and related M-plan for social justice at SU.

The digital dialogues are constantly scrutinizing Covid-19 lockdown regulations and subordinate instruments, as they constantly change. The purpose is to assess implications for social justice, equal enjoyment of all rights and freedoms, the rule of law and democratic governance, and advise government accordingly. The work on Covid-19 is specifically undertaken by the social justice and Covid-19 policy and relief monitoring alliance (SCOPRA) cohort of the social justice M-plan think tank.

SCOPRA, which was formed in April 2020, is a social accountability network that focuses on tracking all Covid-19 policies and relief measures to assess and ensure compliance with the equality duty and related social justice and human rights commitments, has since held several digital roundtables.

One of the digital roundtables was co-hosted with Uaria, a human rights education and social accountability network based in Kenya. SCOPRA is also concerned about adherence to democratic governance and the rule of law in its regulation of public life and commerce during Covid-19 in line with the Constitution and applicable international norms.

The purpose of the dialogue was to scrutinize and elicit lessons from the De Beer judgement regarding the rule of law and constitutionalism. The dialogue also sought to distill certain principles to provide a greater understanding of the disaster management act, its strengths and its shortcomings and the extent of government’s adherence to it. The understanding was that guidance for the way forward can be provided when two questions are asked, namely what has happened and what should have happened?

The digital roundtable emerged with an advisory policy brief to be submitted to parliament and the president, with specific recommendations to assist government in designing a constitutionally aligned policy approach to Covid-19. The recommendations focus on compliance with the constitutional duty to advance equal enjoyment of the rights to equality, human dignity and other human rights, which is inclusive of eschewing avoidable intrusions on human rights. The recommendations, which are informed by sustainable development goals 10, 1 and 17 too, also seek to warn government against gratuitous deviations from democratic governance and the rule of law.

Facilitated by Madonsela, who is also the social justice M-Plan convenor, the roundtable included speakers such as Prof Sandra Fredman (University of Oxford), Prof Elmien du Plessis (North-West University), Prof Bradley Slade (SU), Prof Geo Quinot (SU), Dr Phephelaphi Dube (an independent legal consultant), Maricia Froneman (ThuMa Foundation) and Cat Walker (social justice ambassador).

Kernels of wisdom
The speakers conceded that while aspects of the De Beer judgment are flawed, potentially fatally, the judgement contained various kernels of wisdom, that the government would ignore at its peril and that of the nation. The key message distilled from the judgement is the Government’s duty to undertake a human rights impact assessment which includes an equality assessment before it implements any law or policy.

Says Madonsela: “If a policy or law will limit human rights, such limitation should be reasonable and justifiable in an open and democratic society based on equality, human dignity and freedoms as envisaged in section 36 of the Constitution. If there is an alternative way to achieve the purpose sought to be achieved through regulatory interventions that undermine human rights or equal enjoyment thereof, government is obliged to opt for such less intrusive alternatives. The question should therefore be, how do we get there with as little intrusion on human rights as possible.”

A loud and clear message was the need for the government to only exercise power given to it and to do so only within the confines of the constitution and the law. Included is the duty not to exceed authority in that power can only be exercised for the purpose for which it has been given. This is an essential part of the rule of law, which the De Beer judgement highlighted. Also highlighted was the government’s duty to adhere to the culture of justification, which was a break with the past ushered in by the Constitution.

The SCOPRA participants noted that a lot of the problems with managing the Covid-19 pandemic stem from government’s failure to implement the disaster management act of 2002 (DMA) prior to Covid-19. Key in this regard are the structures and systems that were meant to ensure that the country is always disaster ready.

The meeting also noted with grave concern, inexplicable deviations in its recent implementation in response to the Covid-19 regulations. Among those deviations is the absence of an intergovernmental response to Covid-19, which was meant to be achieved through an intergovernmental committee established under section 4 of the disaster management act. The act, it was noted, also envisages a collaborative approach with business and civil society, primarily through a multi-stakeholder and diverse expert inclusive disaster management advisory forum.

Key areas of concern that were identified in relation to Alert Level 3 regulations and the regulatory pattern in response to the Covid-19 pandemic since 15 March 2020, centred on the importance for government to understand that its response to Covid-19 is not only about balancing public health and the economy – it includes ensuring social cohesion, which incorporates the duty to protect, preserve and advance all human rights for all. This again was one of the messages distilled from the De Beer judgement.