Picking the illegal Lockdown
The hard restrictions perpetuated by the regulations pertaining to Level 4 of the Risk-Adjusted Strategy have led to the widespread and mounting expression of frustration, anger and utter disdain — As they should!
The status quo follows in the wake of the gullible majority’s initial crippling by fear, followed by perplexity— as the empirical truth began to emerge— and then a phase of denial and apathy, which has allowed Government to continue under the delusion that it is entitled to impose restrictions which are prima facie illegal (as exposed below) and have no bearing on the viral contagion.
However, the mere expression of frustration and anger would appear to simply feed the draconian in the ministers who continue to grandstand their in-eloquence and incompetence on our TV screens. It’s time to act!
An issue close to our hearts, set out in ‘Speak for Children still estranged by the lockdown‘, inspired us to act by mandating a member firm to act pro bono in addressing a stern letter of demand to the ministries of Social Development and Justice on behalf of various parents (who responded to the article), resulting in the regulation being amended within a couple of days to permit the movement of these children.
The subsequent publication of a series of articles by us and the firm advising on the circumvention of regulations would never have occurred until rendered constitutionally duty-bound in the face of a sorry state of national affairs conspired by the powers that be.
Government has been using the media and propaganda to smokescreen what was not only a premature decision to invoke powers in terms of the Disaster Management Act (DMA), but also an illegal one which stands to be set aside as exposed in ‘The Lockdown Continued‘. Expanding on the unlawfulness— The DMA does not provide for a ‘disaster’ to be declared as a precaution or preventative measure, but only when the event is by definition:
“…of a magnitude that exceeds the ability of those affected by the disaster to cope with its effects using only their own resources…”
Epidemiology, virology, immunology and the like are clearly not exact sciences, but numbers do not lie! A ‘magnitude‘ in context has not even close to transpired and certainly did not exist at the time. The country and economy were evidently and prematurely crippled by a monumental error of judgment by Government, which continues to be perpetuated either by ulterior motives, incompetence, or both.
Even prior to the imposition of Level 4 of the ‘risk-adjusted strategy’, the regulations and directions pertaining to movement, or rather the lack thereof, were flawed as unraveled in ‘Unlockdown‘, written at a time when the title and content would have been considered taboo by the majority blinded by the fear of the unknown.
The new Level 4 law pertaining to ‘movement of persons’, takes the incongruity to another level in providing that:
“16. (2) A person may only leave their place of residence to– (f) walk, run or cycle between the hours of 06H00 to 09H00, within a five kilometre radius of their place of residence: Provided that this is not done in organised groups.”
Practically speaking, however, this merely serves to widen the already massive chasms identified in ‘Unlockdown’— As set out, criminal liability requires intent, for example, if one is caught on your bicycle at 10am, how are the State, in a month of Sundays, going to prove beyond a reasonable doubt that it was not the result of an unintended puncture or mechanical breakdown en route? Furthermore, if caught outside the radius who (besides the crow) is in a position to cast an inkling of doubt that you may have been temporarily ‘residing’ at a friend nearby, heading to the shops to ‘obtain an essential good’, to draw essential cash or even, if running, that your dogs weren’t unforeseeably slow due to their extended month of rest (it is puerile just to be hypothesizing in this vein, but that is what a ‘nanny’ provision does to lateral thinkers).
Our very first article and posts which followed, exposed the ‘song and dance’ media propaganda of a cyclist (more like commuter) being arrested. It would be fascinating to see if the commuter was even charged and, if so, whether it was for cycling illegally on the R28/N4 or crossing a metropole or district border, as opposed to ‘cycling’ during lockdown, as it was made out to be.
In terms of economic activity in general, there are numerous perverse scenarios playing out as touched on in “New commercial Activities Permitted or Not’. In the vein of this article, a client requested whether or not a car wash could be operated in level 4— the answer is not a simple as it should be. While not defined as an ‘essential service’ in the Labour Relations Act, ‘cleaning’ found its way into the mix as a permitted category and was apparently removed, but has made a comeback into into level 4 under the heading ‘MEDICAL, SOCIAL & PERSONAL SERVICES’. As cleaning is not defined, it must be interpreted so as to promote freedom of economic activity, and thus include inter alia a car wash.
‘Moving’ forward, it is imperative to not only see through the Government’s political and socio-economic agenda but to treat the unlawful lockdown regulations and directives with the contempt with which they deserve, by applying the broadest possible interpretation as ‘permitted’ in matters of clear constitutional violation.
Having fully committed our resources to exposing the illegalities and ‘acting’ pro bono, we implore legal practitioners —both attorneys and advocates— to join our panel in increasing the capacity to:-
- formulate applications to set the lockdown as a whole aside, as well as the relaxing the regulations pertaining to various categories;
- represent adversely affected persons and businesses in damages and class actions, on risk; and
- defend those unlawfully arrested for breaching the regulations for any type of otherwise lawful economic activity or exercise as well as to proceed with related damages claims, also on risk.
Should anyone require any advice with regard to the regulations and directions or encounter any difficulty with unruly enforcement officials, simply contact us at email@example.com, otherwise follow our ‘Unlockdown’ groups on Facebook and Linkedin.
∼ The Linklawer Team
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