Is the lockdown lawful? This increasingly important question, in both South Africa and abroad, can be addressed by the work of Lord Bingham who was Lord Chief Justice of England and Wales. Shortly before his death, realising the phrase Rule of Law had ceased to have a clear meaning, he wrote 'The Rule of Law', a short, excellent book which outlines the essential elements.
Lord Bingham devoted a chapter to each fundamental principle. The first principle is that the law must be accessible. The "law" must prima facie be law, if not, then it is inaccessible and unlawful.
Lord Bingham illustrated his concern about the law not being accessible by way of an example. The state had issued a forfeiture order against a member of the public declaring R1.5m of his property forfeit to the state. This was done in terms of a regulation passed in 1992. The citizen resorted to the courts but the High Court ruled in favour of the government. The member of the public took the matter to the Appeal Court which was presided over by more than one judge. Having heard arguments, the judges again ruled in favour of the state, upholding the forfeiture but indicated they would deliver a written judgement in due course. The judgement was drafted as such but, before the court could be reconvened, it was brought to its attention that the 1992 regulations had been replaced by a different set of regulations in 2001. The regulations applied in the case had long ceased to exist. Lord Bingham more or less accepted the inevitability that the law placed before a court may in fact not exist.
He wrote: "Neither the trial judge, nor the prosecutor, nor defending counsel, nor the judges of the Court of Appeal knew of these later regulations, and they were not at fault."
The ruling was then given against the state in favour of the member of the public.
In my view, we should not accept this. Before any analysis begins, the existence of the law as law itself should be confirmed. It should be shown that prima facie it exists. As Lord Bingham put it in articulating his first principle, "we ought to be able, without much difficulty, to find out what it is we must or must not do." The prima facie refers to the "without much difficulty."
With regard to the lockdown, our government is not purporting to rule by decree. Its public pronouncement is that it is acting in terms of the Disaster Management Act 57 of 2002. This itself is a matter of concern in that a pandemic does not easily fit the concept of a disaster. It is a public health issue. It is therefore not surprising other countries, such as the UK, have acted in terms of their Public Health legislation. However, this can be dealt with in a later analysis.
For a Bill to become an Act of Parliament, a number of things must happen. Firstly, it must go through the parliamentary process including being given the assent by the President. However, that is not enough. It also must be published in a Government Gazette. This was duly done on the 15th January 2003. But three further problems exist. It has become common for the Act to contain a provision that the Act will only come into operation on a date proclaimed by the President and published in the Gazette.
Indeed, the Disaster Management Act contains such a provision which reads: "65. This Act is called the Disaster Management Act, 2002, and comes into operation on a date determined by the President by proclamation in the Gazette."
Notice that this section authorises the President to bring the Act into operation at a future date. It does not authorise him to bring various sections into operation at different times. The provision is all or nothing. Thus, an additional proclamation in the Government Gazette needs to be found, if indeed it exists. This finding of a multiplicity of publications is what led to the problem in the case referred to by Lord Bingham – these publications can only be found with great difficulty, if at all. We are now clearly moving to the position where it cannot be said the law prima facie exists.
But let us persevere to the second problem, which arises from s3 of the Act which reads: "s3 Administration of Act
This Act is administered by a Cabinet member designated by the President."
So, not only must the President Proclaim the Act to come into existence, but he has to issue a further proclamation nominating a cabinet minister to be the minister designated as the "responsible" minister. This means a further document has to be located. Did the President issue this second proclamation? If the copy of the Act published by Juta & Co is consulted, it will be seen it contains an enigmatic note which reads: "Date of commencement of s3 in so far as it does not relate to Chapters 2, 3 and 4: 1 July 2004."
Somewhere in a tsunami of Gazettes there may be a proclamation which brought section 3 into operation but this proclamation does not cover chapters 2, 3 and 4. To the extent that a pandemic can be considered a disaster, it is a national disaster. National Disasters are dealt with in terms of chapter 3. As already pointed out, the Act does not authorise the President to bring different sections into force at different dates, let alone subsections within a section. Therefore, the validity of this proclamation is open to dispute. But, even if it is valid, it does not cover national disasters.
The third problem is, who is the responsible minister? What we do know is that Minister Nkosazana Dlamini-Zuma, the Minister of Cooperative Governance and Traditional Affairs, has been issuing decrees with respect to the lockdown. So, presumably, it is accepted she is the designated minister in terms of s3 of the Act. A proclamation issued by President Mbeki in 2004 appointed the Minister of Local Government as the responsible minister. The names of the departments have changed and, when this happens, perhaps the portfolios also change. Thus, it is not clear in which portfolio Disaster Management should fall. It is also not relevant for the point being made. It is not prima facie possible to tell if Zuma is the responsible minister since another minister was designated. This can only be validated by further research. It is not possible prima facie to tell if the designated minister is administering this Act.
I think it is now clear that prima facie the lockdown is not lawful. On the face of the documents, we cannot say the actions have been taken in terms of the existing law. Some may argue that if more research is carried out it may be shown that de jure lawfulness exists. That, I suggest, is not anywhere near good enough in terms of the fundamental principle of the rule of law articulated by Lord Bingham. There is no reason at all why the laws the public are supposed to obey should not be prima facie lawful. The current system is unnecessarily complicated, and it should not be. The confusion of this complexity should not be a burden which falls on the public. If Parliament cannot make laws which are simple and clear, the courts should just not recognise the validity of the complex mess with which it is confronted.
By Robert W Vivian, a Professor of Finance and Insurance in the School of Business Sciences at the University of the Witwatersrand. The views expressed in the article are the author’s and are not necessarily shared by the members of the Free Market Foundation.