The lockdown is unconstitutional – Part II
8 May 2020
In the first brief, we noted that the Constitution's transformative vision obliges the state to take all steps necessary to create a society in which every person has the space to reflect upon the plurality of possible ways of living for the sake of determining which are meaningful to them, and the power and means to then make that determination real.
In this brief and the next, we consider what this transformative duty means for the Disaster Management Act, 2002 ("Disaster Act"), the legislation through which the executive has effected the lock down. Here, I consider the purpose of the powers afforded to the executive by the Disaster Act, arguing that despite their exceptional nature, they must be interpreted consistently with the transformative vision articulated in the first brief.
DISASTER AND POWER
Section 1 of the Disaster Act provides a definition of 'disaster'. This definition is the heart of the Act, for it introduces the conceptual scheme and the governing norms that structure and inform the powers created by the Act:'
"disaster" means a progressive or sudden, widespread or localised, natural or human-caused occurrence which–
(a) causes or threatens to cause–
(i) death, injury or disease;
(ii) damage to property, infrastructure or the environment; or
(iii) disruption of the life of a community; and
(b) is of a magnitude that exceeds the ability of those affected by the disaster to cope with its effects using only their own resources.'
Once an 'occurrence' meets this definition, the Minister of Cooperative Governance and Traditional Affairs ("Minister") is empowered, in effect, to act how she judges fit for however long she considers appropriate.
The last two months have revealed the breadth of these powers. The Minister has issued a swathe of regulations and directives. Not only do many seriously limit our rights, this exercise of law-making and executive power often deviates from basic constitutional principles and processes. Whilst the Disaster Act borders on unconstitutionality, it is probably justifiable—provided, at least, we recognise the limited circumstances in which its powers can be exercised.
THE IMPORTANCE OF PREPARATION, OR ITS LACK
At first glance, the above definition of disaster might appear to cover all natural and social ills ranging from murder and homelessness to erosion and bad weather. A closer reading of the definition, though, makes plain that it does not cover all these ills. To see this, we must better understand what it means for something to be 'a disaster'.
Disasters by nature confound persons who experience or bear witness to it. An event is disastrous not just because it causes or embodies something bad. In addition to this, its appearance must be such that it cannot be predicted or its effects cannot reasonably be controlled.
Lack of control or unpredictability can have two origins. We might lack the knowledge necessary to determine when or where the occurrence will appear, e.g. flood or fire, or the technology or resources to respond to the occurrence in a way that adequately secures our interests, e.g. earthquake or cyclone. Or, prior to the occurrence, we might lack the ability to recognise its possibility. In this case, it is not technical ignorance or incapacity, but the lack of a conceptual framework into which we can situate the occurrence, that makes it a disaster or catastrophe, e.g. Holocaust. It is beyond our earthly ken, it is an ill (dis-) that appears to come from the stars (-astro).
With both technical and conceptual disasters, unpredictability or lack of control means that no general albeit problem-specific measures can be taken prior to the occurrence to guard against or adequately respond to it. It is this practical impotence that distinguishes disasters from the manifold social and natural ills ordinarily faced by humanity, e.g. murder, erosion, homelessness or the coming of winter. With these non-disastrous ills, we can adopt prior measures that eliminate or reasonably mitigate the harmful effects of their commission or appearance. Not so with disastrous ones.
The criteria of unpredictability or lack of control are reflected in the Disaster Act's stipulation that the harm or threat must be 'progressive or sudden' before it can qualify as a disaster. Whereas the word progressive speaks to the lack of reasonable control, the word sudden speaks to our being unable to predict the happening or location of the occurrence.
This definition is important. It delimits the powers afforded to the Minister. Her power is restricted to taking steps that, ideally, should have been taken before the social or natural ill appeared, and which for time-sensitive reasons cannot now be taken by Parliament and other organs of state acting through regular, constitutional processes. However, once these measures are in place, or once Parliament and others can gather themselves and take back control, the further exercise of power under the Disaster Act will not be lawful.
The internal limits to the powers under the Disaster Act are important and we return to them in the third brief. In addition to these limits, though, we must appreciate how the Constitution's purpose structures and restricts disaster-related powers.
THE PURPOSE AND LIMITS OF PREPARATION
The sudden, unpredictable nature of disasters may make the Disaster Act constitutional. When threats appear that cause harm that individuals cannot manage alone, it can be necessary to centralise power, limit rights or deviate from legal processes. In the absence of pre-existing measures that safeguard our interests adequately, we sometimes must act quickly and restrictively.
Despite all this, when the Minister exercises power under the Disaster Act she remains constrained by the overarching purpose of the Constitution. Her duty is not merely to prepare for and respond to the threat, but to do this in a way that is consistent with the state's ultimate, transformative responsibilities under the Constitution.
In everything that the Minister does, she must act within and according to the Constitution's demand that the state respect, protect, promote and fulfil the vision articulated through ubuntu. The decisions that she makes and processes by which she makes them must always and only be structured by the positive vision embodied in the Constitution:
A society in which we have the power and means to reflect upon and choose between the plurality of possible good or meaningful ways of living, a world in which we have space and capacity to realise our own judgments about what is ultimately worthwhile.
In the next brief, we shall see that whilst issues like health and economic productivity matter a great deal when trying to create this world, they have no necessary special status relative to other concerns. In the end, it is the failure to recognise and act in accordance with this legal truth that renders the current lockdown unconstitutional.
Matthew Kruger, Research Fellow, Helen Suzman Foundation
This article first appeared as an HSF Brief.
 See sections27(1), (2), (3) and (5) and 59(1)(a) of the Disaster Act