Lockdown: Why the state has won cases

NEWS ANALYSIS

Despite the painful curtailment of people’s rights and freedoms during the lockdown, the government has been on a winning wicket in court. It has won, emphatically and conclusively, every court challenge concerning the national state of disaster.

But this is not because the gov-rnment has been doing everything right. There are valid concerns about the constitutionality of the regulations governing the lockdown. There is also strong evidence of abuse of power by the police and army. Instead the problem has been the way the cases have been put together and brought to court.

The first case under the state of disaster was barely comprehensible. The Hola Bon Renaissance Foundation asked the highest court to make a number of orders, each more bizarre than the next. These included an order that the state of emergency be declared unlawful — except that there is no state of emergency. It was quickly dismissed, surprising no one.

Police brutality and abuse of power

Then there was the case by the nongovernmental organisation Fair and Equitable Society of South Africa about police and army abuse of power.

Incidents of disgraceful behaviour on the part of our security forces have been circulated on social media since day one of the lockdown. It is unconstitutional and unlawful to humiliate people in the streets for allegedly transgressing lockdown rules — only courts may make a finding of guilt. It is unlawful to enter into people’s yards and beat them up for drinking — the regulations allow you to drink in your yard.


Each incident erodes the trust between the individual and the state that is crucial for an effective combating of the virus. That they invariably have involved black, and usually poor, people makes it so much worse.

There are now reportedly nine people who have been killed by the police or army in the enforcement of the lockdown. The latest, which was first reported in the Sunday Independent, was particularly horrific and has led to legal action. Collin Khosa from Alexandra was assaulted so badly by a group of South African National Defence Force (SANDF)and members of the Johannesburg Metropolitan Police department that it led to his death, said a letter of demand from his family.

The letter spells out in appalling detail what is alleged to have happened. One member of the SANDF held his hand behind his back while the other choked him, he was slammed against a cement wall, he was hit with the butt of a machine gun, he was kicked, slapped and punched in the face, stomach and ribs. He was slammed against a steel gate.

By the time they were done with him and he had been helped back into his house, he was vomiting, losing consciousness and unable to walk. All this because he had been sitting in his yard, having a drink — a lawful act.

The identities of the soldiers and police officers are not known, so the Mail & Guardian was unable to get their side of the story. The fact that remains that there are three children now without their father.

The Fair and Equitable Society went to court over police brutality before the death of Khosa. But reports of other incidents, particularly on social media, were widespread.

But the society had no direct evidence. Instead, it referred to videos and allegations circulating on social media, as well as newspaper reports. “It is not possible for the applicant to go across the country to identify the locations of these videos [and] the victims that have been subjected to the unconstitutional and unlawful conduct,” said the society in court papers.

But there are rules about this kind of evidence. And with all the misinformation around, this is not a technicality. An applicant must do more than just refer to something on Twitter to bring a valid case.

In the circumstances, it was easy for President Cyril Ramaphosa to dispatch their case: “I do not wish to be understood as not taking the allegations seriously … However I am advised that it is impermissible for the applicant to rely on unverified events that have circulated on social media to establish a basis for this application.”

The society wisely withdrew its case.

The Khosa case, if it goes to court, may be different. The letter of demand shows that the lawyers have already obtained first-hand witness accounts of what happened. They have already obtained preliminary medical evidence, which is damning.

If the allegations are true, it looks like an open and shut damages claim. But, it appears, from the letter that Khosa’s family has another concern: they want the brutality to stop.

They have asked the president and defence minister to tell them what will be done to ensure an end to police brutality during the lockdown.

It is unclear what a court could do in terms of preventing (as opposed to providing consequences for) police brutality. The law on the use of force is clear, the problem is that it is being ignored by the boots on the ground. The role of Independent Police Investigative Directorate and the defence force ombud — also raised in the Fair and Equitable Society case — would also have to be traversed.

If it gets to court, the Khosa family may perhaps ask for some kind of supervisory role for the courts over incidents of brutality during the lockdown, to ensure they are acted on swiftly.

Baby clothes and booze

The Gauteng Liquor Forum has challenged the ban on alcohol sales. (Delwyn Verasamy)

There have also been challenges to the disaster regulations. There was the case about whether baby clothes were an essential good — a real and pressing issue for new mothers. Not everyone was prepared for the non-availability of clothes and blankets for newborn babies during the lockdown and winter is fast approaching.

The needs of babies was something the government had not thought through carefully — with “products for the care of babies and toddlers” added as an afterthought in an amendment to the regulations.

But the main problem with this case was that, as soon as the issue came to the government’s attention, it acted: The state attorney wrote back on behalf of the president, saying thank you, we hear you, come let’s talk about how to address the issue. Yet the applicants still insisted on the case being heard.

They also wanted it heard by the Constitutional Court but direct access to the highest court is granted only in the most exceptional cases. The Constitutional Court dismissed the case saying the regulations provided for baby care products and that it was not in the interests of justice to hear it.

The potential court challenge by the Gauteng Liquor Forum — over the total ban on the sale of alcohol — may go the same way as the baby clothes case. The government has responded by saying it will be discussing these concerns. It may be that it will act to take the harsh edge off the economic effects of the ban, and the case may fail for lack of urgency.

Personal protective equipment

The National Education, Health and Allied Worker’s Union (Nehawu) case — about personal protective equipment (PPE) for healthcare workers — was a bit different and was not so easy to dispatch.

On the face of it, the founding affidavit by Nehawu’s Zola Saphetha was compelling: healthcare workers at the coalface of the battle against the virus were not being provided with the correct equipment to protect themselves from infection. Saphetha’s affidavit was detailed — referring to specific hospitals. It described how attempts to discuss and partner with the health department had been rebuffed.

Given the international shortage of personal protective equipment, it was easy to believe. But the case was flawed, most importantly by the facts on the ground. In an answering affidavit, Health Minister Zweli Mkhize set out in meticulous detail the position in every province and specifically dealt with the hospitals Saphetha had referred to — down to numbers of gloves and masks.

His account presented a totally different picture: no healthcare worker was going without the necessary and required equipment. There were “supply pressures”, but these were being planned for and could be resolved. He demolished the accusation that he had rebuffed attempts to meet the union.

Nehawu had an opportunity to counter the facts put up by Mkhize — through a replying affidavit. But it did not, instead asking for a postponement and then withdrawing its case at the last minute. This led the labour court to take an unusual step: it refused to allow the union to withdraw the case and instead dismissed it with costs.

In her judgment, the labour court’s Judge Benita Whitcher said: “The applicant has not come close to establishing its central contention that, at the time it launched its application, there was a shortage of PPE at public health facilities warranting the relief it sought.”

And that was the end of that one.

It is unclear what a court could do in terms of preventing (as opposed to providing consequences for) police brutality

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

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