Just for a moment, it seemed that Big Bad Tobacco would, for a change, do something socially useful. It would take on Big Bad Government in a landmark court case that would define to what degree the state can legitimately interfere in the lives of its citizens.
Unfortunately, it then reverted to type and scuttled off. Or as the British American Tobacco South Africa company phrased it when announcing that it was abandoning its legal challenge against the ban on tobacco sales during the COVID-19 pandemic, it would “rather pursue further negotiations with government on the formulation and application of the regulations”.
Of course, if a deal can be struck, it’s always better to do so. It’s potentially more rewarding, both financially and tactically.
That appears to chime with the philosophy of the liquor industry, which after similar bluster about a court challenge to the ban on alcohol sales, has also slunk off. It, too, is instead wrangling and wheedling behind the scenes with the government.
The lack of appetite for a legal scrap is understandable. Neither of those industries wants the risk of a court ruling that might circumscribe their future actions and options. Nor does the state.
A contributing factor to finding a fudge is that the African National Congress is not keen to have too much of the party’s soiled undergarments on public display. Minister Nkosazana Dlamini-Zuma, who overruled — consensually, we are assured — President Cyril Ramaphosa’s announcement lifting the tobacco sale restriction, has long been financially linked to an alleged illegal tobacco kingpin. He happens to be the man who funded her party leadership bid against Ramaphosa.
And as is always the case with ANC skulduggery, it’s a bit of a family affair. Eldest son Edward has links to the company that produced the brand of illegal — in other words, untaxed — cigarettes seized in Gauteng this week. It was a substantial consignment, almost 9m cigarettes.
But the lack of courage of the tobacco and alcohol industries in pursuing a definitive court ruling is unfortunate. We should be uneasy over how the ANC government is reshaping the country under the guise of dealing with a medical emergency. Court challenges are the best way of finding out in which direction a “transformed” judiciary is heading in term of protecting us against state over-reach.
Until now, the COVID-19 pandemic has been measured mostly in terms of its potential for being a public health tragedy and financial disaster. But, in SA today, it also has the possibility of judicial tragedy and disaster.
Not since the dark days of apartheid have the courts had to deal with the politically fraught situation of a powerful state that is arguably riding roughshod over the Constitution and its Bill of Rights. The pandemic has raised a host of issues which, were they to go all the way to the Constitutional Court, would give a very clear picture of the state of SA’s judicial health.
There’s the use of race criteria in the disbursement of disaster aid. It is difficult to think of a more complete inversion of the values of the ANC of Nelson Mandela’s days than the Ramaphosa administration’s decision that micro-enterprises financially crippled by the pandemic will be supported not according to their level of distress and likelihood of going under, but according to the degree to which they meet a black empowerment-ownership scorecard.
An application by Afriforum and Solidarity against this policy was this week dismissed by Judge Jody Kollapen in the Gauteng High Court. He said the government’s race-based criteria did not provide an “unfair advantage”, but simply gave those so favoured “a head start”. It’s an argument that cries out for a Constitutional Court interrogation that would draw a mark as to when desirable empowerment segues into undesirable discrimination.
Then there’s the promulgation of a number of regulations that patently are irrelevant or even inimical to the aims that they ostensibly are meant to achieve. Idiosyncratic rule-making might be great fun for our megalomaniacal ministers, but if repeatedly challenged in court and struck down because they are found to be irrational and arbitrary, the unhappy drift towards governing by administrative fiat will be arrested.
There’s the deployment of the military and the lack of effective oversight of it and the police, which has led to hundreds of allegations of assault, torture and even killings. An urgent High Court application has been brought by the family of Collins Khosa, who was allegedly beaten to death by soldiers after they saw him drinking a half-glass of alcohol in his own backyard.
The Khosa application is not about compensation. It’s about asking the court to order the police and the military to comply with their enshrined obligation “to teach and require their members to act in accordance with the Constitution and the law”. It also asks for the urgent suspension of the soldiers involved in the alleged killing.
Astonishingly, the Minister of Defence and the Chief of the SA National Defence Force are opposing the application. As constitutional expert Pierre de Vos describes it, theirs is a rebuttal “replete with technical arguments and sophistic hair-splitting”.
Finally, there’s a pandemic command structure, which now runs the country but is not answerable to Parliament. Nor, it seems, to questioning by the people.
Last week, advocates Nazeer Cassim and Erin-Dianne Richards wrote to Ramaphosa, voicing polite disquiet over the risk of constitutional and democratic malfunctioning. This, they said, arose from what appeared to be the questionable establishment, structure and functions of the National Coronavirus Command Council, as well as the noticeable lack of government transparency about the body.
Their concerns are not an eccentric, isolated aberration. Advocate Vuyani Ngalwana, former chair of the General Council of the Bar, has similarly questioned whether the considerable disruption imposed on citizens to curb the spread of Covid-19 was reasonable and justifiable in an open and democratic society.
In his response to Cassim and Richards, the president’s public persona of benign Uncle Cyril slipped — a rare occurrence. Instead, an imperious Emperor Ramaphosa the First took to the throne. The effrontery of these questions and raising the possibility of litigation, said the Presidency. Cassim and Richards were doing nothing less than “putting in jeopardy measures taken to save South African lives”.
Responding in turn, attorney Tracey Lomax, in a long, impassioned letter to Ramaphosa, criticised the lambasting of Cassim and Richards. He should, she writes, simply have addressed their concerns, now widespread in the legal fraternity.
Lomax’s letter to the president eloquently captures a growing public disenchantment at every level. It merits quoting at length:
“I urge you not to become hubristic. Do not dismiss us. Do not condescend to us. Take us into your confidence. Not only are we entitled to it, we deserve it. We have earned it.
“Most of us have faithfully heeded your call for social distancing, your call to protect our fellow citizens. We have isolated ourselves from friends and family, we have sacrificed many of the things which give meaning to life – social interaction with loved ones, a simple hug, a gentle touch.
“We have done so because we trusted you. That trust becomes fractured when our concerns are dismissed, when you go from family elder to condescending parent in tone and conduct.
“I urge you to reconsider the position adopted by your office and your government. We are not your children. We are your citizens.”
All this should be self-evident to a president who is forever waffling on about the importance of social compacts. Sadly, when Ramaphosa speaks about a social compact, he is not talking about the one between government and governed.
He’s talking about the one between the fractious blocs that make up the ANC’s precarious tripartite alliance. That’s the one, at the end of the day, that matters most to him.
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