n his address to South Africans on the evening of Wednesday 13 May 2020, the President of South Africa made reference to shortcomings in his government’s interventions aimed, ostensibly, at “flattening the curve” of covid-19 infections. The President said:
“Some of the actions we have taken have been unclear, some have been contradictory and some have been poorly explained. Implementation has sometimes been slow and enforcement has sometimes been inconsistent and too harsh. This evening, I want to reaffirm my commitment and the commitment of the government I lead to take whatever action is necessary to safeguard the life, the dignity and the interests of the South African people.”
Because “eternal vigilance is the price of liberty” let us explore the President’s mea culpa and commitment a little more closely.
The President, I’m afraid, either misdiagnoses the problem with his interventions or mischaracterises it. Yes, a great number of the regulatory interventions lack clarity. Yes, his ministers contradict what he tells South Africans not only by what they say but also by what their directives and regulations say. Yes, the conduct of his police force and soldiers demonstrate that his vision has been poorly explained to them. But, the problem is far more serious: many of these interventions appear to be irrational and possibly even unconstitutional.
Misdiagnosis inevitably tends to result in prescribing the wrong intervention. If you diagnose a common flu as HIV you are likely to prescribe anti-retroviral drugs than short-term administration of paracetamol. So, when the President misdiagnoses a problem, it is not reasonable to expect South Africans to trust the President’s interventions and “commitment … to take whatever action is necessary to safeguard the life, the dignity and the interests of the South African people”; lest such “necessary” action be tantamount to administering anti retrovirals to treat flu.
I shall take just one example to illustrate this point: one showing possible unconstitutionality of one of the regulations.
The 29 April 2020 Regulations are the latest substantial regulations to be issued by the Minister of Cooperative Governance and Traditional Affairs. Regulation 14(2) of those regulations is possibly unconstitutional both in its over-breadth and because it is capable of being invoked in order to suppress opinion on government’s covid-19 intervention that government does not like.
The regulation says:
“(2) Any person who publishes any statement, through any medium, including
social media, with the intention to deceive any other person about-
(b) COVID-19 infection status of any person; or
(c) any measure taken by the Government to address COVID-19,
commits an offence and is liable on conviction to a fine or imprisonment for a period not exceeding
six months, or both such fine and imprisonment.”
Some people hold and express the view that covid-19 is just a flu virus strain, like Influenza, and so does not justify the drastic measures that the South African government has taken, like limiting people’s outdoor physical exercise to between 06h00 and 09h00, prescribing people’s wardrobes and the food items that people may buy.
These people may be absolutely wrong not only in their characterisation of covid-19 but also in their assessment of what it takes to address it effectively. But that does not warrant even a threat of arrest by a police officer on the beat suspecting an “intention to deceive” to be lurking behind that opinion, a question that only a court can resolve some months if not years later, by which time a citizen will have been persecuted and subjected to the ignominy of being hauled before a criminal court, possibly in handcuffs, just for expressing an opinion and sharing an idea on government’s response to covid-19 that the government does not like.
The mere existence of the threat of prosecution in regulation 14(2) for expressing an opinion or sharing an idea has a chilling effect on the right to free expression which is enshrined in the Bill of Rights Chapter of the South African Constitution which confers on everyone
“the right to freedom of expression, which includes … freedom to receive or impart information or ideas”
We know this because the Constitutional Court has pronounced on it. In one of its earlier decisions in Mamabolo  ZACC 17; 2001 (3) SA 409 (CC) it said:
“Freedom of expression, especially when gauged in conjunction with its accompanying fundamental freedoms, is of the utmost importance in the kind of open and democratic society the Constitution has set as our aspirational norm. Having regard to our recent past of thought control, censorship and enforced conformity to governmental theories, freedom of expression — the free and open exchange of ideas — is no less important than it is in the United States of America. . . . Therefore we should be particularly astute to outlaw any form of thought control, however respectably dressed. . .”
That was 19 years ago.
Soon thereafter (citing the European Court of Human Rights in Handyside v The United Kingdom (1976) 1 EHRR 737 to demonstrate that South Africa is not alone among democratic nations to hold freedom of expression dear) the Constitutional Court said the following in Islamic Unity Convention  ZACC 3; 2002 (4) SA 294 (CC):
“[The right to freedom of expression is] applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb . . . . Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.”
The same is true for the United States. In United States of America v Schwimmer 279 US 644 (1929) (73 L Ed 889) Holmes J said:
“If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.”
On the constitutionally permissible limitation to the right to free speech, the Constitutional Court said:
“Where the state extends the scope of regulation beyond expression envisaged in section 16(2) [of the Constitution], it encroaches on the terrain of protected expression and can do so only if such regulation meets the justification criteria in section 36(1) of the Constitution.”
Section 16(2) of the South African Constitution excludes from constitutional protection only speech or expression or opinion which amounts to
- propaganda for war;
- incitement of imminent violence; or
- advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.
In Laugh It Off  ZACC 7; 2006 (1) SA 144 (CC) the Constitutional Court summed it all up in one sentence:
“unless an expressive act is excluded by s 16(2) [of the Constitution] it is protected expression”
More recently, the second highest court in South Africa (the Supreme Court of Appeal) in Qwelane v South African Human Rights Commission and Another 2020 (2) SA 124 (SCA) has weighed in. Citing George Orwell, it says:
“If liberty means anything at all, it means the right to tell people what they do not want to hear.”
So, unless an opinion on covid-19 or any measure taken by the South African government to address covid-19 amounts to (1) propaganda for war, (2) incitement of imminent violence, (3) advocacy of hatred based on race, ethnicity, gender or religion constituting incitement to cause harm, it is protected by the Constitution.
Regulation 14(2) does not suppress opinion which propagates war, incites imminent violence or advocates hatred on stated grounds. It suppresses, on the face of it, constitutionally protected expression.
But the right to express an opinion is not absolute. It may be lawfully limited for greater good. It sounds all utilitarian, but for regulation 14(2) to be found unconstitutional it must fail the justification analysis in s 36(1) of the South African Constitution. The inquiry is whether the limitation of the right is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account factors such as:
- the nature of the rights being disrupted;
- importance of the purpose for which the rights are being disrupted;
- the nature and extent of such disruption;
- the rational connection between the disruption and its purpose; and
- whether there are less disruptive means to achieve the purpose of the disruption.
The Constitutional Court has said in numerous decisions that this list of considerations in the justification analysis is not exhaustive as, ultimately, the question is whether the limitation of rights is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The Constitutional Court has also stressed that the justification analysis need not be dealt with on the basis of a check-list approach.
The Constitutional Court has said the following about the courts’ constitutional responsibility in the face of executive excesses:
“No-one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law against governmental erosion.”
“Without [moral] authority [the judiciary] cannot perform its vital function as the interpreter of the Constitution, the arbiter in disputes between organs of state and, ultimately, as the watchdog over the Constitution and its Bill of Rights — even against the state.”
Here is my question: In light of the many pronouncements of the Constitutional Court and the Supreme Court of Appeal – some of which are cited above – on the constitutional importance of the right to freedom of expression in a constitutional democracy given our history in South Africa of the suppression of free speech under apartheid, will the courts exercise their moral authority to arrest what seems to be precipitous governmental erosion of the rule of law in the name of “flattening the curve” of covid-19 infections, or will the judiciary endorse a reading of regulation 14(2) that makes “thought police” of the state by suppressing opinion?
Will the courts be bold in their judicial activism or adopt an executive-minded approach by categorising governmental erosion of our rights as “polycentric” or “policy-laden” intervention over which they are powerless to pronounce? Time will tell.