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- The Law Trust chair in Social Justice at Stellenbosch University, Thuli Madonsela, in an open letter, wrote all policies must comply with the Constitution's equality clause and, by implication, the dictates of social justice.
- She says public policies and conduct must not only pass the reasonableness test in a court of law, they should also pass that test in the court of public opinion.
- Madonsela says the indefinite extension of the lockdown is when the trouble started.
Some of the loudest voices against the unreasonable regulations are President Cyril Ramaphosa's supporters who are so concerned about the social impact, they are prepared to speak publicly rather than whisper the truth, former Public Protector Thuli Madonsela has said in an open letter.
"Expect more people to push back against the perceived excesses, since Parliament, which is an essential check and balance, has been missing in action," she added.
Ramaphosa's newsletter two weeks ago showed he was aware of this, Madonsela said, quoting him by saying his administration "will continue to welcome different - even dissenting - viewpoints around our national coronavirus response".
"We must remember, Mr President, that public policies and conduct must not only pass the reasonableness test in a court of law, they should also pass that test in the court of public opinion. The king in The Little Prince learnt that to derive legitimacy, laws must also be just, fair and reasonable in the court of public opinion."
Sacrifice needed
Madonsela, the Law Trust chair in Social Justice at Stellenbosch University, wrote there "wasn't a murmur of dissent" when Ramaphosa announced the initial 21-day lockdown.
"Even though we knew some businesses, particularly informal businesses, might not survive, we knew the sacrifice had to be made," she pointed out.
"The idea was to achieve physical distancing that would limit transmission, thus avoiding unmanageable demand for our limited health facilities, including hospital beds and ventilators.
"Our medical services needed time to prepare, and obtain adequate personnel protective equipment. At the time, nobody asked questions about reasonableness or legality; the need was self-evident."
Madonsela said the indefinite extension of the lockdown "with the promised sweetener of a gradual relaxation of the restrictions on movement and commerce" was when the trouble started.
READ | Citizens who trust Ramaphosa willing to sacrifice human rights to curb Covid-19 spread, survey finds
"This led to questions about whether the draconian restrictions, which devastated the economy and social well-being, were the best options the government had.
"It seems to me that the two key challenges to the lockdown are social justice and reasonableness - which are both protected in the Constitution."
All policies, including the coronavirus regulations, must comply with the Constitution's equality clause and, by implication, the dictates of social justice, Madonsela said.
"The Constitution requires that no section of society should be unjustly and unfairly excluded from opportunities, resources, benefits and privileges. No group should bear a disproportionate burden under the Covid-19 rules.
"But you need to know, Mr President, that there are increasing concerns about the reasonableness of some of the Covid-19 rules. Like equality, reasonableness is also a legal requirement for policies."
People's resistance to colonial and apartheid laws has taught her that "when the law is unjust, violating it is not only justified as legitimate, it is exalted as heroic".
Preserve democracy
"Perhaps you can take a page out of [The Little Prince author] De Saint-Exupéry's book, Mr President, and not only save the people from avoidable pain, but also preserve democracy," she wrote.
Most of those "bearing the brunt of the draconian rules, who feel they're being asked to throw themselves in the sea, don't have the means to engage" with the president, Madonsela said.
READ | Cabinet to appeal judgment declaring lockdown regulations invalid, confident of another outcome
"If I am correct in my observation, how long will our edifice hold?
"How long will the cry of the young people in villages and townships - whose self-employment has ground to a halt, their unregistered businesses ineligible for loans and salary relief - go unheard? While the R350 basic income grant for the unemployed is fantastic, how long will it take to reach the poverty hotspots?
"Instead, we read of food parcels being delivered randomly in a process tainted by corruption."
News24 reached out to Ramaphosa's spokesperson, Khusela Diko, for comment. This will be added once received.
