Did SA get the balance right? As part of Mandela Month, during which we
Witwatersrand) highlighted that the COVID-19
remember the birth date of Nelson Rolihlahla
pandemic exposed a gap between government’s
Mandela on 18 July 1918, the Centre for Human
intentions and society’s willingness to work
Rights, Faculty of Law, in collaboration
with government for the better protection of all.
with Leading Like Mandela Institute and the
She indicated that much work was needed for
Thembekile Mandela Foundation, hosted the
government to convince the people to join its
first in a series of online Mandela Talks.
journey of decisions and to make sure that the
The first Mandela Talk contemplated the
population is on board. She criticised attempts
best way in which to approach the constitutional
to extend the ban on the sale of alcohol to take
implications of the COVID-19 regulatory
repressive measures against anyone drinking
framework. The Talk was chaired by Ms Abigail
alcohol. She also linked the violence of the
Noko (Head, Regional Office Southern Africa,
security forces that led to the death of Collins
UN High Commissioner for Human Rights)
Khosa to their overzealous attempts to punish
while Prof Frans Viljoen (Director, Centre for
the use of alcohol.
Ms Abigail Noko
Prof Frans Viljoen
Dr Liaqat Azam
Justice Johann van der Westhuizen
Ms Okyerebea Ampofo-Anti
Adv Mohamed Shafie Ameermia
Adv Mohamed Shafie Ameermia
Human Rights) and Dr Liaqat Azam (Director, Leading Like Mandela Institute) provided
(Commissioner, South African Human
welcoming and introductory remarks.
Rights Commission) noted that although the inequalities and other societal problems in
In his presentation, Justice Johann van der Westhuizen (Former Judge, Constitutional
South Africa are exposed by the pandemic, all is
Court of South Africa) explained that all rights
not lost. He urged South Africans to collectively
may be limited, but only if the limitation
lead like Mandela by becoming active
(such as a COVID-19 regulation) is in line with
citizens, joining hands and working towards
section 36 of the Constitution. He explained
a collaborative partnership. Commissioner
that the “rationality” test should not be viewed
Ameermia concluded by quoting Nelson
in isolation, but as the part of the section 36-
Mandela: “A new world will be won not by those
test. The “rationality” test inquires whether
who stand at a distance with their arms folded,
there is a credible connection between the
but by those who are in the arena, whose
specific means (such as banning the sale
garments are torn by storms and whose bodies
of alcohol) and the desired ends (such as
are maimed in the course of the contest.” Justice Zak Yacoob urged the government
preventing more infections or saving lives). The pandemic highlighted that this was a case of
to better focus its efforts on the rights of the
the “chickens that have come home to roost”:
most marginalised, in particular very poor
After years of neglect, it is difficult to manage
people. In his view, government’s primary
societal problems with laws in a society where
objective should be to educate its citizens to
The government failed to get the balance right
the law itself has routinely been disregarded.
become more responsible during the pandemic
and is relying too much on regulation and not
Justice van der Westhuizen also called on South
(wearing masks, maintaining social distancing
enough on education.” He also highlighted the
Africans to realise that asserting their rights
and looking out for each other). While the state
importance of curbing corruption, as a way to
has to take into account the need to respect the
must do all it can to curb the spread of the
restore trust in the government. A necessary
rights of others.
coronavirus and save lives, it has overregulated,
starting point, in his view, is that government
with the policing of citizens taking precedence
must admit to having been engaged in
Ampofo-Anti Consulting and Sessional
over the education of the people, leading to
inexcusably plundering the resources for which
Lecturer, Media Law and Ethics, University of
infringements of their rights.
there now is such a dire need.
Ms Okyerebea Ampofo-Anti (Partner,
“You can’t use a hammer to tighten a screw.
Views of the 59 participants Has the SA government struck the balance right between competing interests? In its general response to COVID-19? 5
33
16
In banning the sale of tobacco products? 5
8
22
25
In banning the sale of alcohol? 4
10
21
24
In reopening schools? 4
17
25
8
9
n YES, DEFINITELY n NOT QUITE n NO, DEFINITELY NOT n I AM NOT SURE University of Pretoria | TUKKIE 25
