/Ronald Lamola | The law cannot be static or cast in stone during Covid-19

Ronald Lamola | The law cannot be static or cast in stone during Covid-19

2020-04-26 07:36

Freedom Day 2020 is unique. It is happening under the imposing limitations of a dictatorial virus which has imposed restrictions on people across the globe, writes Ronald Lamola.


It is difficult to speak about freedom when people are not free. People are agonising about what the future will look like, asking themselves difficult questions. Will we be able to take a stroll next week or in the near future? Will we continue to eke out a living? What does the future hold for us and our children?

It is clear that our freedom will come from our actions as a nation, how we respond to the advice of the World Health Organisation (WHO), government and medical scientists. We can determine and shape the kind of future we want in our country by adhering to the Covid-19 restrictions and encouraging our community to do the same. In that way, the world will be free again.

We will be free to take a stroll without restrictions, watch sporting events, gather in our places of worship, attend concerts, etc., activities which are part of a normal life. Freedom from Covid-19 will come from today’s sacrifices. Freedom Day allows us to celebrate the progress we have made since that historic day in 1994 when South Africans of all races and backgrounds came together for the first time to each cast their vote for a democratic government of their choice, in a free country.

When the sun rose on 27 April 1994, it brought with it a new sense of hope for a bright and prosperous future and the opportunity of creating a better life for all.

It was a vision that many had died for in the cause of a struggle for freedom and democracy; something which many of those who have paid the ultimate sacrifice did not get to see in their lifetime. We owe a considerable debt of gratitude to that heroic generation whose blood has watered the tree that bore the fruits of freedom we enjoy in South Africa today.

Freedom Day reminds us that we have overcome what once seemed insurmountable. It is a constant reminder that we are a resilient people whose heroic struggle against colonialism and apartheid represent the triumph of the human spirit against adversity of the worst kind.

Today, the apartheid and colonial legacies are no longer characteristics by which our country is defined; we are a free people in a constitutional democracy, on each day recording positive acclamations that contribute to the unity, prosperity and future growth of this great nation.

But Freedom Day also affords us the opportunity to pause and reflect on the journey we have travelled  thus far, and consider how much more still needs to be done to deepen human rights, democracy and ensure that the law responds adequately to the needs of society.

John Locke, the British philosopher of the 17th century, made a pointed observation when he remarked that “the end of law is not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings capable of law, where there is no law, there is no freedom”.

The Covid-19 pandemic has brought with it challenges never foreseen or experienced before in the history of our democracy or elsewhere in the world. The sobering picture where many teeter on the brink of disaster as they lose loved ones at rapid speed due to this pandemic, in no doubt reflects the obvious reality that no country in the world has had a trial run, and no health system anywhere in the world has had years to plan for this killer virus.

Everything is new for all of us and there will be trial and error along the way. However, we should not be in despair.

The way by which the virus spreads and means by which to contain and mitigate its effects, demand from us a multi-faceted response – practical measures, health initiatives, societal behavioural change, economic rescue and recovery solutions, legal prescripts to ensure safety and protection and human rights considerations.

The challenges are daunting, but government, working together with various stakeholders, have rallied all in an approach that ensures assiduity towards defeating the pandemic through progressive measures and decisive leadership. It should not be taken lightly that the WHO lauded our country’s concerted efforts in the fight against Covid-19.

It was no coincidence at all but a genuine recognition of the work our government is doing, under the esteemed leadership of President Cyril Matamela Ramaphosa. However, more work still needs to be done to manage the spread of this pandemic and to conquer it.

To achieve that, South Africans must continue to abide by the preventative legislative and other measures, some of which entail the necessary restriction of our freedoms, in order to stem the tide of this pandemic which poses a threat to the sacrosanct right to life.

When it comes to the law, the virus has reinforced one important lesson, being that the law needs to be responsive to the needs of society. The law cannot be static or cast in stone. It needs to be responsive to practical situations on the ground. Where the law fails to adequately address or provide for certain situations, the law must change – and change quickly.

Admittedly, in the normal course of events, laws take a long time to make and is traditionally seen as being slow to change. Lawmaking is normally accompanied by a lengthy and inclusive process, with adequate consultation and the opportunity for all stakeholders and role players to influence its final form by giving their inputs on bills and refining their contents until they are near perfect.

But there is nothing normal about working in a Covid-19 world. Often, laws have to be drafted or amended overnight, with less than optimal levels of consultation. 

Legal prescripts have to try and provide for situations that have never been experienced before. Accordingly, we henceforth need to ensure that our lawmaking processes are proactive. This creates the need for a conciliatory approach to consultations with stakeholders, affected parties and the general public.

When people tell us that the law is not working, we need to listen to them and change it. For this reason, many of the current regulations and directions from various government departments have already been amended and are likely to be amended again as we continue to tailor our legal instruments to meet the needs for an efficient and effective Covid-19 response. As situations change, so should the law.

What is ultimately important is that the government listens, we are responsive. That is what a vibrant democracy is all about. However, in listening, government must be sure to listen even to the voices of those with softer voices and empty pockets – the poorest of the poor, and not allow their interests to be drowned by the interests of those whose pockets are full and voices louder. In the end, what should guide us is the public interest and the general good of all.

Covid-19 and social distancing have also forced us to rethink the way we work and particularly how we can use technology to be more efficient and effective. Across our entire justice system, we are making increasing use of technology, both inside and outside our courts, forcing ourselves to think outside the box. We are challenged to come up with innovative ways to ensure that the justice system doesn’t grind to a halt.

Many would have read or heard about how Angelique Kidjo has recently re-recorded the late Miriam Makeba’s legendary hit “Pata Pata” and added Covid-19 lyrics to spread the message to all the world, more in particular Africa, to take the preventative measures against the pandemic seriously.

That is what we all need to do – change the lyrics of our lives. We need to adapt; we need to change the way we do things and the way we think about things.  

Covid-19 brings with it fear and uncertainty. Accordingly, it is easy to be overwhelmed by it. But, as we advance towards Freedom Day, we are reminded that we have overcome hard times and dark days before and we shall do so again.

The journey has begun, and we must arrive at our destination – a South Africa free of Covid-19, sooner rather later. This is going to require some sacrifices on our part. After all, we are the prospective beneficiaries of a Covid-19-free society, in a free country at peace with itself, its neighbours and the world. But for now it is no more Pata Pata.

– Lamola is Minister of Justice and Correctional Services.

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