What happens to the rule of law in a time of crisis? While individual rights are important, life is a paramount individual right.

‘Keeping us alive is the most important function of government. We are mostly prepared to lose some of our freedoms in exchange for being alive. Hence, there will be greater tolerance for the suspension of laws that guarantee freedoms and individual rights in a time of crisis because the justification is the preservation of life.’

Advocate Tembeka Ngcukaitobi – a member of the Law Reform Commission – adds that the rule of law has to be maintained, and we must depend on the executive to uphold the Constitution, with section 36 providing ‘a useful departure point’.

In the section, every right can be limited, but must take place in terms of laws of general application.

‘Such laws themselves must be reasonable and justifiable in an open and democratic society.’

In his analysis on the Mail & Guardian Online site, Ngcukaitobi notes that legal precedent on the formulation of section 36 has stipulated that laws restricting individual rights should be proportional to the harm identified.

‘They should also be designed in such a way that they do not encroach on other rights. Once the harm is restrained, the need for the limitation of freedoms will also diminish. At that stage, the state is expected to retreat from encroaching on rights and freedoms.’

Noting that the present response to the current lockdown is a ‘pervasive sense of paralysis’, Ngcukaitobi believes the choices to be made are not obvious: ‘Although there is a willingness to embrace the state response to the health pandemic, there is a fear of excesses, which will be difficult to undo. Yet although the law is severely stretched by the Covid-19 health emergency, the paradox is that the paralysis faced by human rights advocates can be answered only by law.’

However, he sounds a warning: ‘The suspension of laws necessarily concentrates power in the hands of politicians. Political power can rapidly translate to military and policing powers. Not everyone will obey the restrictions to “stay home” during the period of lockdown. Of necessity the police will be at the frontline of ensuring compliance. The potential for conflict between citizens and officers is manifest. Not only do the police have guns, they also have the authority of the state to use violence when necessary. In those conflicts, the rule of law can only be the casualty.’

Full analysis on the Mail & Guardian Online site