The lockdown in unconstitutional – Part I

8 May 2020

INTRODUCTION

This is the first in a series of three briefs. Each stands on its own. Any reader who only wants to know the legal grounds for why the lockdown is unconstitutional, therefore, can jump to the third guilt-free. To get a full picture, though, you will have to soldier your way through.

The argument to support the claim in the title of this brief is disarmingly simple. Let us stipulate it in four steps:

The Constitution is supreme. All law or conduct that is inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.[1]

The Disaster Management Act, 2002, under which members of the executive have locked the nation down, is subject to the Constitution. Likewise for the exercise of power under the Act. If this power is not exercised lawfully and rationally, it is invalid.

To exercise power lawfully and rationally, not just the purpose for which it is exercised but the process by which it is exercised must meet certain conditions:

Whatever the case may have been when we first were confined to our homes, recent policy and regulations reveal that the lockdown now both exceeds and falls short of the purpose, constitutionally understood, of the Disaster Act.

The policy and regulations also show that the process by which the decision to extend the lockdown beyond 1 May 2020 was irrational, for they evidence the failure to take into account constitutionally essential considerations.

This failure of purpose and process means that whatever one might think of the lockdown as a matter of fact, it is unconstitutional as a matter of law.

In the second and third briefs, we articulate and defend the second to fourth steps of the argument. Here, we draw out one consequence of the Constitution's supremacy, namely, the subordination of all law and conduct to its transformative vision.

Spending some time on this vision is important. Ultimately, the problem with the current lockdown is that it rests on a near-total, comprehensive failure by government to understand what our Constitution is all about.

TRANSFORMATIVE CONSTITUTIONALISM

Ours is a radical constitution, not in the superficial or reactionary sense often meant by our politicians. No, it is radical in the sense that it instructs us to get to the root of the matter—to those relations that structure our political, social and economic world.

Once we get to there, we must not merely tinker at its edges or smooth out its inconsistences, as if the problem with our past was just a misallocation of power or resources. If this were all the Constitution did, it would be an improvement on the criminal one that preceded it, but it would not be radical—or, to put this in a legal idiom, it would not be transformative. Rather than tinkering, the Constitution tells us to reconstruct the relations through and in which we live our lives.

In part, to say that the Constitution is transformative is to say that it embodies and articulates, albeit in an abstract way, a positive vision for how we should effect this reconstruction.

A CONSTITUTION OF POSSIBILITIES

This positive, transformative vision, our courts have told us, is both captured in and summarised by the concept of ubuntu.[2]

The courts have drawn on this concept to decide matters as diverse as capital punishment,[3] contract,[4] delict,[5] criminal law,[6] housing,[7] customary law,[8] cultural expression,[9] the exercise of public power,[10] relations among citizens and between citizen and state,[11] treatment of refugees and people living with HIV,[12] interpretation,[13]street naming,[14] and property.[15] As the Constitutional Court has explained, ubuntu ‘suffuses the whole constitutional order’.[16]

Elsewhere, I have argued at length about the constitutional meaning of ubuntu,[17]explaining its legal relation to various ideas and values: love, hatred, retaliation, victimisation, reparation, understanding, acceptance, tolerance, good neighbourliness, equality, good faith, fairness, compassion, generosity, dignity, social justice, welfare, peace, solidarity, unity and reconciliation.[18]Here, we can only point to its meaning and significance for the exercise of public power.

The basic idea is that persons are constituted through their interpersonal relations. We are not islands. It is through our relations with others that we realise our humanity.[19]We are communal beings. That said, ubuntu recognises that each person is also unique and different. Society is made up of members who not only have different views about who gets what and how much, but by individuals and groups who have conflicting ideas about what makes our lives meaningful. Whereas you might think it love, someone else might think it play, and others still might believe that friendship, religion, leisure, work, power, fame, cultural belonging, status, etc. make life worth living.

Ubuntu, the Constitutional Court has said, communicates the idea that this pluralism of beliefs about what is good is not something to be feared. It is not a 'parade of horribles', but a 'pageant of diversity' that constitutes and enriches life.[20] The Constitution embraces this pluralism through its foundational values of dignity, freedom, equality, non-sexism and non-racialism, and through its entrenchment of a multiplicity of civil, political and socio-economic rights.

The positive, transformative vision embodied in the Constitution, articulated by the courts through the concept of ubuntu, is the creation of a society that respects both our sameness and our uniqueness. It imagines a world in which every person can reflect on and choose between possible meaningful ways of living, a society in which we all have the space and capacity, as individuals or groups, to realise our own judgments about what is ultimately worthwhile.

THE SUPREMACY OF THE CONSTITUTION

Once we grasp this transformative vision that suffuses the whole constitutional order, we recognise the significance of the Constitution's supremacy. The state, in all that it does, must work to make this vision real. It must not only respect and protect this vision insofar as it is already realised, it must also promote and fulfil this vision to the extent that it is not.[21]Any failure to do so, any law or conduct that does not meet this duty, is invalid and must be declared as such.[22]

Whilst all this might sound rather abstract, in the next two briefs we shall see that this vision imposes concrete and demanding duties on the state—so much so, in fact, that its most recent decision to lock the nation down is unconstitutional.

Matthew Kruger, Research Fellow, Helen Suzman Foundation

This article first appeared as an HSF Brief. 

[1]Sections (1)(c) and 2 of the Constitution

[2] The law derives the concept from the proverb 'umuntu ngumuntu ngabantu'. This is the Nguni version of the proverb. For others, see Michael Onyebuchi Eze, Intellectual History in Contemporary South Africa (2010) 95-103. Whilst doubts have been expressed about its translatability, e.g. Yvonne Mokgoro, ‘Ubuntu and the Law in South Africa’ (1998) Buffalo Human Rights Law Review 15-23 and Rosalind English, ‘Ubuntu: The Quest for an Indigenous Jurisprudence’ (1996) SAJHR 641-8), we have been given similar renderings by judges and academics: a person is a person through or because of other people, e.g. MEC for Education: Kwazulu-Natal v Pillay [2007] ZACC 21 para 53, City of Tshwane Metropolitan Municipality v Afriforum [2016] ZACC 19 para 11 and Desmond Tutu, No Future Without Forgiveness (2000) 34-5.

[3]S v Makwanyane [1995] ZACC 3 paras 131, 223-7, 237-50, 263, 308-11 and 374

[4]Barkhuizen v Napier [2007] ZACC 5 para 51 and EverfreshMarket Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd [2011] ZACC 38; [2011] ZACC 30 paras 23-4, 61 and 71-2

[5]Dikokov Mokhatla [2006] ZACC 10 paras 68-9 and 112-21, The Citizen 1978 (Pty) Ltd v McBride [2011] ZACC 11 paras 216-8 and Le Roux v Dey [2011] ZACC 4 para 200

[6]Van Vuren v Minister of Correctional Services [2010] ZACC 17 para 51

[7]Port Elizabeth Municipality v Various Occupiers [2004] ZACC 7 at para 37 and City of Johannesburg Metropolitan Municipality v Blue MoonlightProperties 39 (Pty) Ltd[2011] ZACC 40; [2011] ZACC 33 para 38

[8]Bhe v Khayelitsha Magistrate [2004] ZACC 17 paras 45 and 163 and Mayelane v Ngwenyama [2013] ZACC 14 para 24

[9]Pillay (n 2) para 53

[10]Masetlha v President of the Republic of South Africa[2007] ZACC 20 para 238 and Joseph v City of Johannesburg [2009] ZACC 30 para 45

[11]Pharmaceutical Society of South Africa v Minister of Health [2004] ZASCA 122 para 39

[12]Union of Refugee Women v Director, Private Security Industry Regulatory Authority [2006] ZACC 23 para 145 and Hoffmann v South African Airways [2000] ZACC 17 para 38

[13]Everfresh (n 4) para 23

[14]Tshwane (n 2) para 11

[15]Shoprite Checkers (Pty) Limited v Member of the Executive Council for Economic Development, Environmental Affairs and Tourism: Eastern Cape [2015] ZACC 23 paras 47-53

[16]Port Elizabeth Municipality (n 19) para 37

[17]That is, the legal not the cultural or historical sense or meaning of the term.

[18] Chapters 11 and 12 of my PhD, titled, 'Pluralism and Possibility: The Ethics of South Africa's Radical and Transformative Approach to Property' (2019)

[19]Port Elizabeth Municipality (n 7) para 37 and Pillay (n 2) para 53

[20]Pillay (n 2) para 107

[21] Section 7(2) of the Constitution

[22]Section 172(1)(a) of the Constitution The legal distinction between proportionality, reasonableness and rationality, when reviewing law or conduct, concerns the scrutiny to which it is put, not the standard by which it is judged.