Lockdown regulations, a case of state power by ministerial directive

That the initial State of Disaster regulations included a wholesale indemnity for security forces, from soldiers and police to traffic officers, was the first signal securocrats were making a play for control.

Regulation 11E came as a surprise to many in government circles as this indemnity provision was not in the regulations sent for appraisal to the state’s lawyers. Such indemnity may well be unconstitutional: Section 37 of the Constitution prohibits indemnity for anyone in the state even during a State of Emergency.

Passing the draft regulations over legal eyes had been a check and balance as those regulations were drafted by NatJoints, the National Joint Operations and Intelligence Structure, which on the back of a Cabinet memo brings together police, military and state security in a structure that does not account publicly.

It’s not clear how the indemnity provision slipped into the regulations that were signed off by Co-operative Governance Minister Nkosazana Dlamini-Zuma on 25 March.

Daily Maverick is reliably informed the justice department stepped in – and the wholesale security force indemnity provision was deleted from the amended regulations published on 26 March.

Similarly, the justice department also stepped in over the initial, and very broadly phrased, track-and-trace regulations published on 26 March 2020 by Communications and Digital Technologies Minister Stella Ndabeni-Abrahams.

According to those communications regulations, mobile network operators must “provide location-based services in collaboration with the relevant authorities identified to support designated departments to assist and combat the spread of Covid-19”.

Justice Minister Ronald Lamola announced the revised 2 April track-and-trace Regulation 11H at a general Covid-19 ministerial update briefing that day.

Key checks and balances include a Covid-19 designated judge – retired Constitutional Court Judge Kate O’Regan was appointed – to whom the health director-general must report weekly. That judge also can make recommendations “regarding the amendment or enforcement of this regulation in order to safeguard the right to privacy”.

Now the health director-general is the only person who may request location and movement information from mobile network providers of “any person known or reasonably suspected to have contracted Covid-19”, and those “known or reasonably suspected to have come into contact” with a confirmed Covid-19 patient.

While this can be done without the person concerned being informed, the health director-general must within six weeks after the State of Disaster ends, “notify every person whose information has been obtained… that information regarding their location or movements was obtained.”

Importantly, the time period for such requests is clearly tied to the Covid-19 public health emergency: from 5 March 2020 to the date on which the national State of Disaster ends. 

And it’s clearly stated: “Nothing in this regulation entitles the Director-General: Health or any other person to intercept the contents of any electronic communication.”

That the State of Disaster regulations were fundamentally amended – twice – represented crucial wins for the constitutionalists. Such changes are a weathervane of the balance of power within Cabinet and the exercise of power by the state. And how power is exercised by the state is fundamental to the character of South Africa’s democracy.

Regulations, like the related ministerial directives, are done behind closed doors with no consultations, and are equivalent to legislation that is binding.

Regulations are commonly called secondary laws. But Parliament at best has a limited role regarding regulations, as only in specific circumstances do regulations like those for the Critical Infrastructure Act come before it for scrutiny. This means that, unlike lawmaking with its public hearings, consultations and input, alongside scrutiny of MPs from various political parties, ministerial regulations are done potentially at ministerial whims.

According to an official statement dated 5 April, Parliament has decided its committees have “the necessary powers” to deal with lockdown oversight, leading to the decision by Deputy Speaker Lechesa Tsenoli to decline DA interim leader John Steenhuisen’s request for a dedicated ad hoc committee on the State of Disaster lockdown.

While in a further statement, Parliament on 6 April said it was exploring work means like virtual committee meetings, that statement also argued:

“… holding such meetings, specifically to conduct oversight over implementation of the lockdown regulations, may require the executive to attend briefings. This could risk taking them away from their extremely critical function of managing measures to combat spread of Covid-19 and preserving life.”

Over the past 10 days, parliamentary committee chairpersons from health, police to small business development have issued statements about the State of Disaster.

Broadly speaking, these welcomed ministerial directives and measures. Just one, jointly issued by police and defence, noted with concern various reports on security forces power abuses. 

“Both committees re-emphasis the call made by the Commander-in-Chief [President Cyril Ramaphosa] that the police and soldiers must act at all times with compassion and within the confines of the law.”

By week two of the State of Disaster, the police watchdog, the Independent Police Investigative Directorate (IPID), was investigating eight deaths linked to police alongside at least 30 other complaints, including assault.

And on Tuesday 7 April, police at the Cape Town Magistrate’s Court barred the media from attending the court appearance of Stephen Birch for disseminating fake news on social media.

The lockdown regulations permit the media, as one of the interested parties, to attend court proceedings. Yet, a policeman captured on video locked the door to the courtroom and prevented journalists from entering.

Justice spokesperson Chrispin Phiri described the incident as “extremely concerning, especially because the regulations expressly permit the media to be present in court”. And the role of the media was even more important during the lockdown.

“We will be conducting an investigation to establish the facts around this incident. To the extent that barring of the media in this matter was as a result of a court administration process, corrective measures will be taken,” said Phiri.

Right from the start, Police Minister Bheki Cele adopted a posture of kragdadigheid: Police Minister Bheki Cele clenches the iron fist, with no velvet glove. He’s deflected questions about such incidents at one of the Covid-19 ministerial updates, arguing that one death was caused by a heart attack, according to the post-mortem, while another did not involve SAPS but Ekurhuleni metro police.

“I have not seen any brutality, just one officer I saw using a sjambok,” Cele is quoted as saying by the City Press: Bheki Cele: ‘I wish alcohol ban could be extended beyond lockdown’.

Of course, adult whipping goes back to apartheid when it was imposed as a criminal conviction punishment overwhelmingly on black South Africans. For the past 25 years or so, such whipping has been unconstitutional.

The contestation between securocrats and constitutionalists at the highest level of government is also borne out in other amendments.

While the State of Disaster regulations were initially drafted by NatJoints and would reflect the law and order priorities of soldiers, police and other security forces, practical day-to-day life issues have now tilted the balance.

Taxi ranks and bus depots were closed, but taxis and buses still had to transport essential services workers and be operational during social grant collections days and so, times and taxi load capacity were amended three times.

Travel between municipal districts and across provincial borders was prohibited – until the impact of cross-provincial migration was brought home by the need to bury loved ones elsewhere. The restrictions were eased on the back of strict conditions such as permits endorsed by magistrates.

But to portray what is unfolding as a dualistic dynamic between securocrats and constitutionalists would be somewhat simplistic. Underneath all this seems to be a push to enact policy measures that the government had previously failed to implement, be it through inability or incapacity.

The ban on alcohol which Cele enthusiastically supports, and cites as a key reason for a drop in crime, obscures the fact that for 26 years the SAPS has failed to enforce the law and close down illegal shebeens, taverns and liquor outlets.

That failure to enforce the law comes even as the SAPS has publicly acknowledged for years that crime spikes from Friday nights, predominately at taverns. Some annual reports show nuts and bolts details of this.

So, put differently, the booze ban under the State of Disaster regulations is doing the job of the police for the police.

And on the governance and policy front, still gathering dust in a Cabinet drawer after some four years are the amendments to the liquor legislation. That 2016 draft Liquor Amendment Bill, reissued in 2018, aimed to raise the drinking age to 21, up from 18, ban booze advertising, and prohibit liquor outlets within 500m of schools and places of worship.

The bill got stuck in the legislative pipeline, somewhere between competing interests and elections. It’s not the only one.

Extraordinary times like the Covid-19 pandemic require exceptional measures. Of that, there is no doubt. And regulations have been part of South Africa’s speedy response to the public health emergency.

But it’s not an easy scenario: regulations are entangled in the tussle between securocrats and constitutionalists, and implementation is not as straightforward as it seems amid such contestation.

Against the backdrop of a state sharply criticised for its delivery failures, it would be tempting for the state to try and retain these exceptional Covid-19 State of Disaster powers of governance by ministerial directive and regulation.

South Africa’s post-lockdown democracy will be shaped by who ultimately prevails – and on what terms. DM