The state, the public and covid

The state of the country is not easy to monitor nor encapsulate quite where South Africa stands in relation to Covid-19, lockdown regulations, economic resilience and the impact of multiple layers of opening up of previously closed segments has still to be tested.

By Peter Bagshawe

When lockdown started the State implemented the Intergovernmental Committee on Disaster Management, chaired by Minister of Cooperative Governance and Traditional Affairs Nkosazana Dlamini Zuma, which led to the establishment of the National Disaster Management Advisory Forum and a National Disaster Management Framework. These all are geared around the management of what is essentially a health crisis of immense magnitude which is the responsibility of Minister of Health Zweli Mkhize in conjunction with experts and committees that he has in turn established in cooperation with supporting government departments. The issuing of regulations is a departure from the normal democratic process in South Africa and this has led to a number of court cases aimed at testing the validity of regulations.

High profile matters that have been taken to court include the application by the Fair Trade Tobacco Association to reverse the ban on the sale of tobacco products, British American Tobacco South Africa’s challenge on the ban of the sale of cigarettes and tobacco products and De Beer Minister of Cooperative Governance and Traditional Affairs. In this De Beer, in his capacity as president of the Liberty Fighters Network challenge to the constitutionality of lockdown regulations. The last mentioned was directed at the Disaster Management Act established by Nkosazana Dlamini Zuma and the National Covid-19 Command Council. The Fair Trade Tobacco Association matter has been decided and the North Gauteng High Court has handed down judgment. The court held in a ruling signed by Judge President Dunstan Mlambo that the decision not to permit the sale of cigarettes was not irrational (as alleged by the Fair Trade Tobacco Association), and that the test for the decision to prohibit the sale of tobacco products was that it was procedurally rational and not that it was fair. By implication and unless overturned on appeal (which the Fair Trade Tobacco Association has indicated it will proceed with) this now provides precedent for the position that provided actions taken by the Disaster Management structures are procedurally rational they will not be overturned by courts of equivalent or lower jurisdiction. The British American Tobacco South Africa matter was scheduled to be heard on 30 June 2020 but, following lodging of papers, is now scheduled to be heard on 5 and 6 August 2020. This delay has led to some dispute between the respective legal representatives and a measure of legalistic finger pointing.

Of equal interest was the decision in the Liberty Fighters Network hearing before the North Gauteng High Court challenging the constitutionality of lockdown regulations found in the Disaster Management Act. This centred on the lockdown regulations failing to consider people’s rights when promulgating the regulations. In a decision which has attracted academic debate as to judicial overreach Judge Norman Davis held the declaration of a state disaster in reaction to the Covid-19 was rational but that some of the regulations connected to the slowing of the rate on infection were not rational and constitutionally invalid. It was further ordered that the Minister and structures responsible review, amend and republish the regulations within two weeks to make them compliant. Minister Dlamini Zuma has lodged an appeal in this matter, but as the two week period had expired this remains a point of review. The criticism of the decision has included the breadth of the order granted, which did not home in on the rationality of specific regulations, the Judge’s averse comments on the paternalistic approach adopted by Government and the regulations imposed failed to give effect to the Bill of Rights.

Reference has been made in previous articles to obtaining public support and goodwill being essential for lockdown to be successful through the various stages in flattening or otherwise controlling the infection rate. It is apparent that the initially high level of public support and buyin has been eroded. From recent announcements by the Minister of Health and reports, it appears that Gauteng is currently approaching an infection spike with the daily infection rate increasing and, at the time of writing, Gauteng had 39,841 infections with 180 deaths. Projections are that Gauteng will soon pass the Western Cape’s current 61, 375 infections to record the highest number of infections nationally. Minister of Health Mkhize has observed that factors contributing to the increase in infections in Gauteng include inward migration after the reopening of sectors of the economy, high population, congregation in groups, lack of observance of social distancing and low level of wearing masks while in public. With the opening of industries further congregation of workers in mines, factories and in public transport such as taxis and busses, the accelerated spread of infections is likely. Bandile Masuku, Gauteng Health MEC has warned that provincially the prospect of intermittent lockdown is being looked at.

Against this background, the flouting of social distancing regulations will only be exacerbated by the recent announcement by the South African National Taxi Council that their members will ignore the 70 per cent capacity loading regulation and commence servicing interprovincial routes.

The possible imposition of intermittent lockdown and associated mechanisms have not to date not been detailed by the authorities but the impact of this, whether imposed by Province or district, will have far-reaching effects. The last mile delivery chain has become increasingly important, shortages of fuel and particularly diesel have been commented on and supply chain interruptions continue to impact on industry particularly in respect of imported products. Moving in and out of restrictions or a return to higher levels of lockdown may well be necessary, but the enforcement of reductions of previous freedom of movement and curtailment of commerce will in all likelihood be resisted and movement into and from areas that do not have the same level of restriction despites regulations is extremely likely. Given the latitude afforded Ministers (Ministers Patel and Cele spring to mind here) previously the potential for further public alienation exists. The recent Supplementary Budget presented by Finance Minister Tito Mboweni probably left more questions open than closed. Following on this, announcements by rating agencies Fitch and Moody’s with both identify ballooning Government debt to GDP and failure to formulate a clear and credible path towards stabilising revenue, ambitious spending cuts, negative growth forecast and diminishing revenue income as problematic. Reference was made by Moody’s to South Africa risking going over a fiscal cliff due to its economic metrics remaining shaky. The forecast from the rating agencies is for further downgrades to South Africa’s sovereign rating which would carry with it increased costs of borrowing. Rand volatility is expected in the short term and given negative GDP projections economic weakening would follow this.

Covid-19 has exposed South Africa and the international community to social, economic and personal challenges that have never been previously presented. The way forward remains unclear and has to be judged on a daily, weekly andmonthly basis. The impact of the pandemic on a fragile health care system and the ability of the health care system to respond will remain a challenge going forward.