The Covid-19 coronavirus might not be a disaster in the ordinary meaning of the word. As when faced with a tsunami, most people cannot protect themselves against it. It requires extraordinary measures, and the responsibility to provide such protection rests with the state. Picture: GCIS

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For the affluent, who can practise social distancing and keep the vulnerable masses at bay because they benefited from the exploitation and conquest of the majority, a disaster will have a different meaning. They have the resources and capacity outside the state to protect themselves. And the rich will be the first to use the Constitution and the Bill of Rights to fight off anything they regard as an invasion of or intrusion on their rights.

The vulnerable majority will be their excuse as to why the governments interventions should be challenged.

The exploiters of the poor and the vulnerable become messiahs when it suits their interests. They have trapped the vulnerable into alcohol and will fight to keep them drunk so that they do not confront the real issues. The rich know they can always replace the cheap labour if those who work for them get sick. The rich enjoy the high levels of poverty, inequality and unemployment because it presents a captive market of the desperate and vulnerable.

The government should not be able to invade our human rights and there should be no doubt about that.

We, the masses, have lived the pain of colonial and apartheid governments that passed many laws to oppress and subjugate us. Any form of oppression must be rejected with the contempt it deserves.

READ:High Court rules lockdown regulations unconstitutional and invalid

But how should the government react and what should it do to deal with the pandemic? It is true that the regulations promulgated by the government as part of the measures to fight this invisible enemy might not pass legal and constitutional muster. And, of course, they should to be sustainable. If they fail, they should be set aside as the high court ruled and the government must be ordered to correct any anomalies to bring them in line with our constitutional values and prescripts.

The reality remains, though: With or without the regulations and their validity or otherwise, Covid-19 is upon us.

Not even the functioning of the courts has been spared by the aggressive virus. When it struck, the judiciary, like the other two arms of the state, imposed restrictions on citizens that stopped access to the courts and, by extension, to justice.

The heads of the various courts adopted measures no less different in principle than those adopted by the executive and Parliament. There must have been a good reason for this. It would be foolhardy to argue that their intention was to violate rights. Their true intention was to protect life and limb.

One cannot argue that the measures were inordinately restrictive and too intrusive

Modidima Mannya

Equally, one cannot argue that the measures were inordinately restrictive and too intrusive. To say so would suggest that there was a far better mechanism the courts could have adopted. Like all of us, the judicial officers were confronted with the reality of an invisible enemy.

It is significant that those who took the executive to court to have the regulations declared unlawful and unconstitutional did not do the same about the measures adopted by the courts. The courts, like the executive, allowed for the exercise of the rights of access to justice under certain restrictions.

Those who had urgent matters could still have their cases heard under certain conditions, the same way we were allowed to go to the shops to buy essentials under level 4. But the restriction to access the courts has affected economic activity.

There are those whose livelihoods depend on the courts functioning every day without restriction. There are those who had disputes that required the attention of the courts to survive in their businesses and their lives. And there have been many court cases which could not be heard because of the restrictions imposed to prevent the spread of the virus.

Those who could not afford lawyers were simply deprived of any opportunity to have their justiciable disputes heard by the courts, not because of the regulations, but because of the measures adopted by the courts.

This category of people has suffered an oppression and subjugation at no fault of the regulations.

READ:Government to appeal judgment declaring lockdown unconstitutional and invalid

Removing the offending regulations does not remove the offending virus. The infection and death rates continue to rise. Nothing says the court officials, legal practitioners and judicial officers will be spared getting infected and possibly dying if courts open and social distance is not maintained.

The reality of Covid-19 is that it not only is invisible and incapable of easy detection but strikes at the heart of the most precious human right, the right to life.

The regulations and directives issued might have been invasive and, in some instances, legally irrational but the primary objective remains logical and is intended to protect the good of the public.

At this time it has been difficult to maintain a proper balance between the realities of an invisible deadly enemy and constitutionalism. The beneficiaries of poverty and inequality will always be those who have the means.

Those without the means will remain oppressed and subjugated by both the deadly virus and the application of the law supposedly meant to protect them.

Mannya is an advocate, writer and executive director of legal services at Unisa

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