Democracy   B. Democracy-relayed issues arising from COVID-10 responses of states
  • Parliament 
    Members of Parliament fall under the category of essential services in terms of South Africa’s COVID-19 nationwide lockdown regulations. In the wake of the pandemic, Parliament initially suspended its programme from 23 March to 13 April. However, since members of parliaments are categorised as essential services, members of Parliament continued to work in communities they represent from 23 March to 13 April. After due consideration by the presiding officers of Parliament, a decision was taken that the business of Parliament must resume with immediate effect, following the conclusion of the constituency programme on 13 April. The leave period for MPs, which was scheduled from 28 April to 4 May, was cancelled.

    The Parliament has continued to function throughout the COVID-19 pandemic through a combination of virtual and physical setting while adhering to the principles of social distancing. Chief Whips represented in Parliament drafted guidelines and rules on how virtual meetings and voting must be conducted. These are based on procedures, precedents, practices and conventions, which Parliament has developed over time.

    In terms of oversight, priority was given to committees conducting oversight of government's COVID-19 response and its implementation of social distancing restrictions under the National State of Disaster Act. These committees have been meeting virtually and have been engaging with the relevant cabinet ministers on the implementation of the COVID-19 policies of the government. The May 2020 plenary session of the National Assembly involved a series of questions by MPs addressed to cabinet ministers whose departments are playing crucial roles in the efforts to contain the COVID-19 pandemic.

    In the light of the recent allegation of corruption by government officials, the President was quizzed by the MPs. The President was physically present in the National Assembly Chambers to make presentations on the allegation of corruption and provide answers to the questions asked by the MPs.

  • Elections
    The COVID-19 pandemic has resulted in the postponement of the Municipal by-elections in South Africa. Since the outbreak of the virus, the Independent Electoral Commission (IEC) has obtained a series of court order, extending and granting a further extension for by-elections in 2020. The IEC has postponed close to 30 scheduled municipal by-elections due to the COVID-19 pandemic. However, the IEC has reiterated its commitments towards conducting the Municipality elections that is scheduled for 2021.

    Political stakeholders have however seen the COVID-19 pandemic as a reason to align elections into different tiers of government in South Africa. The Action National Congress (ANC) and the Economic Freedom Fighters (EFF) have called on the IEC to postpone the municipal elections of 2021 to 2024, in order to align municipal elections with provincial and national elections. The EFF Secretary-General claimed that the COVID-19 pandemic has made it clear that South Africa does not need more than one election.

  • Executive 
    The Presidency has constantly addressed the nation with respect to developments in the country around the COVID-19 pandemic. On 15 March 2020, the President delivered his first statement on measures to combat the COVD-19 pandemic. The President further addressed the nation on 24 March 2020, on escalation of measures to combat the COVID-19 pandemic. The President has further addressed the nation on 30 March 2020, 9 April 2020, 21 April 2020, 23 April 2020, 13 May 2020, 24 May 2020, 17 June 2020, 12 July 2020, 23 July 2020 and 15 August 2020. The statements of the President are also available in some local languages on the website of the presidency.  
    In addition to the President, the relevant Ministers whose ministries play crucial roles in curbing and ensuring the running of the country amidst the COVID-19 pandemic have constantly issued press statements. Some of the ministers that have prominently issued media release & media briefing include the Minister of Health, Minister of Cooperative Governance and Traditional Affairs and the Minister of Home Affairs

  • Judiciary 
    According to the directives issued by the Chief Justice in term of section 8(3)(b) of the Superior Courts Act 10 of 2013 for the management of courts during the lockdown period, ‘urgent applications and urgent matters arising from the activities associated with disaster management may be heard in open Court during the lockdown period, provided that the Judge or Magistrate (hereafter Judicial Officer) hearing the matter may, if he or she deems it necessary, having regard to the exigencies of each case, hear any such matter through video conferencing or other electronic means which are appropriate in the circumstances, after consultation with the parties concerned.’

    • The South African Court has been called upon by litigants to pronounce on different aspects of the different regulations issued under the Disaster Management Act.

    • In the case of  Muhammed Bin Hassim Mohamed & ors v The President of the Republic of South Africa & Ors, the Applicants challenged the legality of the blanket prohibition of gatherings (including for religious purposes) under regulations 11B(1)(a)(i)&(ii) of the regulations issued in terms of section 27 of the Disaster Management Act. The High Court in dismissing the application ruled that the restrictions imposed on gathering by the regulations are neither unreasonable nor unjustifiable. 

    • In the case of Reyno Dawid De Beer & 2 Ors v The Minister of Cooperative Governance and Traditional Affair, the applicants challenged the validity of the declaration of a National State of Disaster and the regulations promulgated by the defendant pursuant to the declaration of a national state of disaster under the Disaster Management Act. The court applied the rationality test to determine the connection between some of the provisions of the regulations and the stated objective of the declaration of a state of disaster-preventing the spread of COVID-19.  The court found that even though the defendant’s declaration of national state of disaster in terms of section 27(1) of the Disaster Management Act is rational, the regulations subsequently promulgated by the defendant are in a substantial number not rationally connected to the objectives of slowing or limiting the spread of COVID-19. The Court declared the regulations as unconstitutional and invalid. The court suspended the declaration of invalidity for 14 days to allow the minister to allow the minister after consultation with relevant minister to review, amend and republish the regulations.  

    • In the case of Moela & Anor v Adam Habib & Anor, the applicants who are students of the University of the Witwatersrand contended that a directive issued by the Senior Executive Team (‘SET’) of the University, in conjunction with the Chairman of the University’s Council on 16 March 2020, that all residences were to be closed students must vacate their residences within 72 hours was a ‘negligent and reckless response to this pandemic.’ The court in dismissing the application ruled that the University has followed precisely all protocols recommended by WHO, the NICD, the President and renowned experts.

    • In the case of CD & MD v Department of Social Development, the court authorised the first applicant to travel between provinces and between district areas, from his residence situated in the Western Cape to the First Applicant’s parents’ residence at Bloemfontein for the sole purpose of the movement of their children. The court found that the amended directions issued by the Minister of Social Development allows movement of children between co-holders of parental responsibilities and rights or a caregiver as defined in Section 1(i) of the Children’s Act is where arrangements are in place for a child to move from one parent to another in terms of a court order.

    • In the case of Democratic Alliance v President of South Africa & Ors, the applicant contended that BBBEE status or criteria such as race, gender and disability cannot be used as a basis for a decision as to the recipients of distributions from funds established by the Minister of Small Business Development to provide financial relief to small, medium and micro enterprises; the Debt Finance Scheme (DFS) and the Business Growth Resilience Fund (BGRF). The court found that the criteria which the Minister of Small Business Development has employed for determining which persons or entities are entitled to receive funds under the DFS and BGRF are unlawful and should be reviewed. The court however held further that In the reformulation of criteria to be employed in the distribution of funds under the DFS and BGRF, the Minister must take into account race, gender, youth and disability.

    • In the case of Fair-Trade Independent Tobacco Association v President of The Republic of South Africa, the applicant contested the legality of the prohibition of the sale of tobacco products, e-cigarettes and related products as part of the measures introduced to curb the escalation of the COVID-19 virus in South Africa. The court upheld the validity of the prohibition and ruled that cigarettes and tobacco products are not essential goods.

    • In Karel Willem Van Heerden, the court dismissed the application of the applicant to be temporarily exempted from the traveling restrictions under the lockdown regulations to travel from Mpumalanga to the Eastern Cape in order to support his mother and to assist with his grandfather's funeral.

  • Transparency/ access to information 
    There have been allegations and reports  of widespread corruption involving funds meant to deal with the COVID-19 pandemic in South Africa. There have been reports of deals between government officials and businesses providing medical equipment, as well as food aid parcels to the poor. Some of the complaints raised include corruption related to the manufacture of face masks, the distribution of food parcels and siphoning funds fraudulently through supposed awareness campaigns. Massive corruption surrounding the purchasing and supply of PPE puts the workers at risk when taking care of patients. Nurses have complained of widespread shortages of PPE that have enabled infections to spread to staff and other patients in hospitals. The Spokeswoman to the Presidency, Khusela Diko, and a top Gauteng health official have taken leaves of absence after a media report said that Diko’s husband won PPE contracts with the Gauteng government. Her husband allegedly won a $7 million (€5.9 million) tender. The Gauteng provincial minister of health, Bandile Masuku, and his wife have also been put on special leave over COVID-19 related tender corruption allegations.

    In order to speed up and strengthen the process of dealing with corruption, the President signed a proclamation authorising the Special Investigating Unit (the SIU) to investigate any unlawful or improper conduct in the procurement of any goods, works and services during or related to the national state of disaster in any state institution. This empowers the SIU to probe any allegations relating to the misuse of COVID-19 funds across all spheres of the state. The Special Investigating Unit is probing more than 90 companies implicated in irregular tenders linked to the COVID-19 procurement processes. The Special Investigative Unit is reportedly investigating alleged irregular contracts in KwaZulu Natal and the Eastern Cape. The Hawks raided the Nkomazi Municipality in Mpumalanga over alleged COVID-19 tender fraud. South African President Cyril Ramaphosa has set up a ministerial committee to investigate alleged corruption in state tenders in the fight against COVID-19, including with businesses supplying protective gear. In line with the directives issued by the Presidency, the Office of the Chief Procurement Officer (OCPO) has published a full list of all companies who have been awarded contracts by government for the supply of goods and services relating to the COVID-19 pandemic on the National Treasury website. The lists include COVID-19 procurement information from all provinces, national departments and over 70 public entities.  

    There are also incidents of corruption within the private setting. The Hawk Serious Corruption Investigation Office arrested a 22 year old suspect for allegedly selling fraudulent permits to informal business owners. The Competition Tribunal also found Pharmaceutical retailer, Dis-Chem guilty for hiking the prices of some of its products that have been classified as essentials during the COVID-19 pandemic. 

    A corruption survey shows that 71% of citizens are concerned about the corruption in the healthcare system, while corruption in the healthcare system was highest in the Eastern Cape and KwaZulu-Natal. There have also been reactions from Civil Society actors against the COVID-19 corruption in South Africa. On 21 August 2020, the Ahmed Kathrada Foundation held an online rally, that called for societal mobilisation against corruption. 
  • Abuse by law enforcement agents / exacerbation of authoritarian tendencies / power grabs
    There have been reported cases of police brutality particularly against Black South Africans-even within their homes.  The South African police and the South African National Defence Force have been called out for abuse of power in enforcing the lockdown orders issued by the government, particularly targeting black South Africans. A 40 year-old Vosloorus man was allegedly gunned down by the police. Addittionally, Collins Khosa, a resident of Alexander, was allegedly assaulted to death by members of the Military at his home. Following legal actions by his family, the North Gauteng High Court ruled that members of the SANDF that were at the scene of his death should be suspended. Apart from attacks on the general citizens, there have also been report of attacks on journalists by the police. 

    The South African Human Rights Commission, said it is closely monitoring IPID's investigation of at least 10 deaths at the hands of law enforcement since lockdown began on March 27 2020. There is also report of different videos on social media recording incidents of police and soldiers forcing people to do difficult and humiliating exercises for  allegedly violating lockdown regulations. As at 1 June 2020, 12 people have died following arrests or other police actions, including a 7 years old who was shot in police fire in North-West Province.

    A top official from the office of the United Nations High Commissioner for Human Rights listed South Africa as one of the 15 countries with the most troubling cases of police brutality during COVID-19 lockdowns. The UN said it has received reports of police using rubber bullets, tear gas, water bombs and whips, to enforce social distancing, especially in poor neighbourhoods. 

    Critics of the government
    have argued that certain language such as that used by the President, the Minister of Police and the SANDF’s General Solly Shoke might be seen to have encouraged an overbearing approach by the security forces. The IPID has also been criticised for failing to complete a single investigation with respect to death in police custody.


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