It’s now day 19 and there is no sign of logical extension of the ambit of permitted contagion-benign activities.
As part of civil society, lawyers should not advocate flouting, but can certainly flirt with the interpretation of unconstitutional regulations, in the interest of the public at large (or rather, at home)— Why not, if it’s leader finds the extension of the lockdown period hysterical!
It must be cautioned that what follows is not for the obtuse, fear-mongered, faint-of-heart or sedentary but for the rest, an eclectic blend of law and satire in the ‘far side’ of the law of movement or lack thereof, lies in store.
I pause to mention the irony of these regulations being published soon after the Minister of Health, a medical doctor, stating that ‘jogging and dog-walking’ would be perfectly fine. Followed by a complete rebuke of these activities, even more ironically by the Minister of Cooperative Governance et cetera and then the Minister of Police’s prophetic nay-saying: “There shall be no jogging or walking-of-dogs!”—And this, despite global tolerance of these activities (even in pandemic epicenters), and the absence of anyone on the planet remotely shown, or even alleged to have been infected in so doing.
21 days is tolerable for the stoic, but 35 days will test even the die-hard. Strange things happen when you ‘coop’ up or lock active people down— for some of us it spells the pen coming out, for others the sword, time will tell which is the mightier.
The Law of Movement (or lack thereof)!
Section 11B. (1)(a)(i) of the Disaster Management Regulations provides that:
“every person is confined to his or her place of residence, unless… obtaining an essential good or service..’’
Nowhere is ‘movement’ by means of driving, walking, jogging, sprinting, leopard-crawling, star-jumping or even cycling prohibited as a means to ‘obtaining’. Nor is the donning of lycra, legwarmers, leather, spandex or anything else, in so doing.
We are to boot, not limited to ’obtaining’ essentials from the shops, in a vicinity, taking the shortest route nor 20kms away, for that matter (that’s a proper jog!). However, the crossing of ‘metropolitan and district areas or provinces’ is illegal period! Well unless you are cycling to a funeral. This, despite the droves of taxis crossing every conceivable border undeterred, over the past Easter weekend! The drivers have clearly been overdosing on ‘Whose line is it anyway’? Not! (Isn’t the announcement that road deaths were down over Easter, thus lives saved, disingenuous propaganda at its height!?)
And if you do use a bicycle to ’obtain’ your goods, keep your social distance! Yes, that means no drafting or bunching for us cyclists out there. And don’t go posting records on Strava, Garmin, Movescount or the like!
Also beware ‘no dogs allowed!’ for walkers and us runners! An official statement, despite no reference to dogs being made in the lockdown law. The question is, has the species been unfairly discriminated against by government? But I guess that’s a cause for the animal rights activists to ‘run with’:)
Essential Goods or Services
Annexure B defines a ‘good’ as including food (how about a chappie?) and even specifies condoms, a very light package to carry en route ‘back from’ the shops (nudge nudge ;;). Although we know from the adjacent graph that they may not ‘come in handy’ right now.
Anecdotally, on just another lockdown day, the writer witnessed a lady alluding to the absurdity of the availability of a bathroom scale on the ‘permitted’ shelf, after she had just been prevented from purchasing sunblock for her kids, yet the shop assistant was ‘powerless’ by regulation to intervene on her behalf.
Essential services include: Medical services, financial services, water and fuel supply, care services for older persons and has since been amended to include “cash withdrawals”.
The legitimate ambit of movement (to and fro) are thus virtually unbridled.
Bizarre Behaviour
Over the past fortnight many of us would have observed bizarre forms of ‘movement’ and antisocial behaviour. For example: People draped in bags masquerading in the open air nowhere close to their homes; lycra clad cyclists with shopping bags dangling from the handlebars, looking a tad (no very) nervous (shoppers must really have ‘socially distanced’ themselves from that shammy:))
Nowhere does it say that essential goods must be in hanging from you people! Although the sights are indelibly etched in the imagination, take a backpack and put the ‘goods’ inside for goodness sake!
Enforcement
The regulations further seek to criminalise ‘unjustified’ movement. However, the state’s burden of proof is at the highest standard that is ‘beyond a reasonable doubt’. All that has to be shown in defense, is a reasonable possibility that the alleged ‘movement’ may have been on the way to obtaining goods or essential services. With shops and ATMs ubiquitous, in the metros at least, it is virtually impossible for the state to prove otherwise.
Besides, not everyone has a car!
In addition, it must be borne in mind that enforcement officials are not above the law, can be and are sued for wrongful arrest and/or detention, damages for which the SAPS has had to pay out over R854 million since 2009..
Every specialist practitioner and his (or her) dog, will ‘chase ambulances’ to defend people on contingency in such matters. Just google “wrongful arrest lawyer” and have one on speed-dial in case.
To their credit, however, the majority of enforcement officers appear to be aware of this, well the SAPS I have encountered at least. Although there are always exceptions hence the purpose of this article, being to not only enlighten the active public, but to highlight the morsel of freedoms that we have left as well as appeal to the powers that be to extend the ambit of movement.
‘Moving’ forward
The above is intended merely as insight, not incitement nor as advice of any nature. If a plausible explanation is required, know the LAW!
What inspired this article, is not so much the unconstitutionality of the regulations, but the nay-saying misinformation by the powers that be (anomalously) and in turn, the ‘peddling’ thereof by the media and consequently misinformed public. For those that judge, rebuke or seek to expose others for lawfully ‘exercising’ their right to move, be informed not an informer, house-arrested by your own fear or gullibility!
Exercise, sun, vitamin D and fresh air, now in abundance, are natural immune boosters and antidotes to disease as well as far more Covid-contagion-benign than wandering ironically en masse up and down the aisles and queues of Supermarkets.
By all means, save petrol and the environment and ‘obtain’ your ‘essential goods’ and while you are at it, savour the unpolluted air for as long as it lasts!
#NoDogNoJog #CyclingWithShoppingBags #SavePetrol #Environment # FreshAir #BeInformed
We as an organisation don’t necessarily share the views expressed above.
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