YEAR REVIEW

2020 THE YEAR

By Peter Bagshawe

2020 has been a year, to date, that has internationally given a number of low points without any meaningful high points (other than the release of vaccines and the demonstrated resilience of communities) to counter the lows.

Historically, the final article of the year would have been a review of the year based on articles written and encapsulating the outgoing year from that perspective. Given the year that has been, this article will focus on three areas that, from my perspective, are of importance, with an overview of their significance.

When I referred to low points, this is not limited to the Covid-19 pandemic (which will be referred to later) but encompasses natural disasters, civil and other conflicts and breaks in traditional methods of observing religious and other events. Economic hardships, the breakaway of the United Kingdom from the European Economic Union as well as the introduction of new norms and values into society have all played a role in marking 2020 as an extraordinary year. Internationally, economic decline, job losses and business closures resulting from Covid-19 were, and are the order of the day. Drought, runaway fires in the United States, Europe and Russia, flooding on a wide scale, extraordinary hurricane and tornado seasons in the Americas with widespread destruction point to shifting weather patterns. Conflicts between Armenia and Azerbaijan, Ethiopia in the Tigray region and ongoing internecine conflicts in Afghanistan with increased Taliban activity, Iraq and Somalia show armed conflicts continuing. The US Presidential election was also a conflict on a number of levels. Germany has gone into a Festive Season lockdown, numerous countries are struggling with the second wave of infections and have imposed restrictions, Sweden has appealed for assistance from its Nordic neighbours, while London and other regions of England have gone to tier 3 (the highest level) of restrictions. All of this has taken place more or less contemporaneously with a shift in restrictions in South Africa.

On 9 December 2020 it was announced, by Minister of Health Zweli Mkhize, that statistical models confirmed that the second wave of Covid-19 infections had officially hit our country with hotspots identified as Gauteng, the Western Cape, the Eastern Cape and Kwa-Zulu Natal. Statistically the second wave is defined as the point where the total number of infections on a 7-day average exceeds 30% of the peak of the first wave of Covid-19 infections. On 14 December 2020 President Ramaphosa addressed South Africa and laid out a series of restrictions that will apply with effect from 15 December. More specifically, the Nelson Mandela Bay (Eastern Cape), Sarah Baartman District (Eastern Cape) and the Garden Route (Western Cape) were identified as hotspot localities. On the face of it and, using a reality check system, the South African economy, already struggling prior to and from the first lockdown, could not survive a second hard lockdown. The restrictions imposed seem to have been tempered by this reality. However the closure of beaches at the time of peak holiday season will have an impact on these areas. Emphasis was placed by President Ramaphosa on mitigation measures (wearing of masks, hand washing and sanitisers), the prohibition of large super spreader events and limitations on social gatherings being essential to control the spread of the virus.

The current national curfew has been extended to effectively be between 23h00 and 04h00. In line with the curfew, and to allow for closure and staff/patron travel time, all non-essential establishments, including restaurants and bars, must close at 22h00. Briefly, beaches and parks in the three specific localities mentioned above will be closed from 15 December until 3 January 2021. Parks and beaches in KwaZulu-Natal will be closed on the traditionally busiest days being 16, 26 and 31 December 2020 and 1 and 3 January 2021. The public consumption of alcohol is prohibited on all beaches and at public parks while beaches may only be accessed between 09h00 and 18h00; all festivals and gatherings at beaches are banned. Other than as stated above, access to beaches in the Western Cape and Northern Cape is unrestricted. Given the loss to the fiscus by way of Value Added Tax and Excise Duty from the first hard lockdown prohibition on the sale of alcohol, this is now only permitted between 10h00 and 18h00 from Mondays to Thursdays. The consumption of alcohol is prohibited in all public places.

With regard to social events, President Ramaphosa emphasised the risk posed by large gatherings without social distancing and preventive measures. The example of the confirmed infection of some 900 out of 1,300 Gauteng attendees at the Ballito Rage event was given and undoubtedly led, at least in part, to the imposition of strict regulations on social gatherings. Following on from this, mention was also made of the anomaly that the highest level of infection is, currently, in the 15-19 year old demographic. Public gatherings, including religious gatherings, have been curtailed in terms of the new regulations, with indoor gatherings limited to 50% of the venue capacity but subject to a maximum of 100 persons at an indoor venue and 250 people at an outdoor venue. Health protocols must be observed, with the wearing of masks mandatory and all post-funeral events have been prohibited. In respect of the workplace and public venues, the enforcement of the wearing of masks and social distancing is a requirement. Additionally, employers are required to maintain records of attendance at the workplace. It should be noted that failure to adhere to the new regulations is now subject to criminal sanction by way of a fine and/or imprisonment.

Turning to the other topics, the Zondo Commission has proceeded to the Constitutional Court requesting an order from the Court to enforce attendance at Commission hearings by former President Jacob Zuma in compliance with the summons issued by the Commission directing Zuma to appear before the Commission from 18 to 21 January and again between 15 to 19 February 2021. This is an adroit manner of avoiding further appeals and delays on the side of Zuma. In an interesting twist, Zuma failed to file his answering affidavit as to whether he will defend the Application and instead advised, through his attorney, that he would not participate in the Constitutional Court proceedings. This makes it apparent that the Commission is focusing on obtaining answers from Zuma, subject to his right to avoid self-incrimination, prior to the Commission’s mandate expiring at the end of March 2021. Zuma has, however, lodged papers in the Pretoria Division of the High Court to challenge Chairperson Zondo’s decision not to recuse himself from hearing evidence from Zuma.

The Public Protector, Busisiwe Mkhwebane, suffered a further legal setback when the full Bench of the Western Cape High Court dismissed her application for an interim interdict prohibiting the Speaker of the National Assembly from proceeding with the process of considering her removal from office. Again, the judgment was scathing and critical of the legal basis provided by Mkhwebane but the thrust of the matter is that the way is now clear for the Parliamentary Removal Inquiry to proceed. Retired Constitutional Court Judge Bess Nkabinde will chair the panel which includes Senior Counsels Dumisa Ntsebeza and Johan de Waal, who are tasked to assess if sufficient evidence exists of misconduct, incompetence or incapacity to proceed with proceedings against Mkhwebane and examine her competence to hold office. Again, this demonstrates the way forward is open and proceeds to bring a measure of finality to a situation that has dragged on for too long a period.

All that remains is to wish readers a blessed, safe and healthy Festive Season. Those who travel, please do so safely.

PETER BAGSHAWE holds a Bachelor of Law degree from the former University of Rhodesia and a Bachelor of Laws degree from the University of the Witwatersrand.