Judge Dennis Davis
South Africa Post COVID. Quo Vadis?

That’s a great question, Carly. I don’t believe that these people are socialists. Let’s get clear what I think we’ve talking about. I think Mr. Ramaphosa, because of course he did go into business and he under, you know, and he made a lot of money. I think Mr. Ramaphosa understands, I suppose one would classify him as a social Democrat, somebody who believes that you’ve got to allow the private sector to do a hell of a lot of the heavy lifting, but that the state has significant residual responsibilities and may I say, I think that is increasingly becoming true in many countries in the world, which have realised just how important the state is to coordinate health activities and reconstruction activities in this desire state. I mean, you know, we’ve seen all over the world incredible complete issuing of austerity programmes and massive government interventions. I think on the other side, people use the socialist rhetoric. It is true many of whom were educated in the old communist regimes, et cetera, but it’s a fig leaf because that kind of socialism of which they’ve talking about has really been nothing more at substance than to a very large extent. Rand capture, people are in a sense have seen the idea that if you aren’t going to grow your economy and if you are not going to be able to participate in the economic fruits of the economy, the way in which you then become rich is by capturing Rands and how do you capture them? By politically positioning yourself that you can benefit from tenders and from similar activities. Anybody who doesn’t believe me should read the book by Trippy Oliver, “How to capture a city” which is about Port Elizabeth and how in fact that was captured by the apparatchiks precisely for that purpose. So the answer is do we actually adhere broadly to the social democratic fundamentals of our constitutional state to which I really do believe Mr. Ramaphosa believes in or do we actually exceed to what would be a socialist rhetoric, but we’re striped to as essentials is nothing more than an increased levels of Rand capture of a kind that was rampant for the last decade and that’s the fissure of the debate and you know, when I’m asked, when I ask who’s in charge, you know which side is winning here, I’m told by a small margin, the constitutionalists are in charge at this particular point in time, but I think the fact that we have seen such level of policy equivocation and uncertainty that, that answer is still uncertain, but I mean to suggest that these people are socialists in the situation, that they’re really concerned about workers, that they’re really concerned about the poor. If they were so concerned about the poor, why were they supporting Mr. Moyane who made sure that, we under collected on tax and wealthy people got off Scott free and that huge sums of money that could have been used to the reconstruction of our society and to benefit poor people, just went by the board. I mean there’s nothing more outrageous it seems to me then the way in which all these crooks have been defended by people purporting to be socialists. It’s nothing of the kind.

Ah, well I’m not sure that, look, let me, it’s a very interesting question, Carly, for the following reason, and a lot of people have asked me this and since it’s unlikely since I’m sitting in the labour appeal court that we’re going, I’m going to have to deal with this. I can give you a broad answer, and a best I can and it’s this. The lockdown was done in terms of Disaster management act, that act certainly was never conceived of for the purposes of a pandemic of this kind, but I do want to say that, you know, that at the end of the day, the powers that were granted in terms of the Disaster management act were limited and probably could be used for this particular purpose, all of which powers had to be necessary for the curbing of the pandemic. So the idea that the first point would be, it would be illegal to have an unlawful, to have a lockdown as such, even if the was designed for other purposes, seems to me to be a bridge too far and it’d be very hard for judges to make that call. Let me explain what I mean, but you come along and you say it’s illegal, question, why is it illegal? Well, because the act doesn’t allow you to do so. Well, I’m not sure that’s entirely true. Certainly I think by a purpose of interpretation of the act, you probably can say those paths were available. Then you’ve got to ask a second question and that question is, government would say we justified in calling it and here are the following epidemiologists, virologists and other science upon which we relied and they would produce a whole lot. Now it’s true, the other side will come along and say, “well we’ve also got our Epidemiologists and our virologists” and I accept that today, every single person, I’m sure including many in listening to our talk this evening are probably expert epidemiologists. We all pontificate about this, but in reality, if you could get others who say no, the Dr. Hano, we’ve seen that, it’s not something that is justified, but a judge is not an expert in this and if in fact the government was able to make a decent showing that there was sufficient evidence to rationally justify, I doubt that a court would strike down the entire process. However, there are two further aspects. There’s no question that judges should be looking very carefully at the regulations which were been promulgated and I’ve already indicated to you I can’t understand other cigarettes, the lock, the exercise one. There are a whole lot of them that seem to me way beyond the point of constitutional muster, but would a court actually strike the whole thing down? It may be that when we get to the end of the three month period, that any extension would be a lot more vulnerable to a lockdown than the initial lockdown or the process now, but you know, I appreciate that people feel, you know, confident in the courts dealing with this, but you know, we aren’t experts in these areas and if there is plausible, rational evidence to the effect that it is a route that can be taken rationally, even if we disagree with it, it’ll be unlikely to set it aside.

I’m not optimistic about the future, as I’ve indicated, I really am not, I’m extremely anxious about the future. I know I’m well aware that lurking over me is the famous statement by Jan Smuts, that in South Africa, never the best nor the worst happens, but I feel that we are coming to a precipice here where we’ve got to do something. Now, generally what we’ve done in our history is to have done something, we’ve pulled back from the worst, we’ve pulled back from the Zuma administration, we’ve pulled back from the disasters of apartheid when finally De Klerk, threw in the towel and started the whole process towards constitutional democracy. The real question is, are we going to pull back from a corrupt government and reestablish a constitutional government and are we going to do the sort of things that are obviously indicated from the economic point of view? If I was going to really take a deep breath, I still residually feel, even though Mr. Ramaphosa seems to be taking the long game, et cetera, I still feel there’s a serious possibility that we may get there, but I have to tell you, it’s going to be a very closely run race.