As momentum gathers in civil society and among ordinary South Africans for the state of disaster to end, several commentators, including prominent academics and state bureaucrats, have urged government to first adopt permanent measures as “replacements”. In effect, they want the state of disaster that was declared by government in March 2020 to be immortalised.
That would torpedo any hope of our society returning to normal and unleash unprecedented power for a government that has shown it cannot be trusted with it. Lockdowns and their associated restrictions must be ended unconditionally, not replaced.
The routine renewals of the state of disaster that have occurred for the past two years are cause for concern. If the law envisioned that states of disaster could be extended indefinitely it would have provided for that. Renewals of states of disaster are surely meant for exceptional circumstances, and certainly not to continue indefinitely.
The answer to this trampling on the rule of law is not to formally make the state of disaster a permanent part of our lives, but rather to move past it, back to a society characterised by freedom and constitutional governance.
Already we have seen the department of tourism include Covid-19 protocols in ordinary regulations issued recently in terms of the Tourism Act. Hospitality businesses, including Airbnbs, will for example be required to check whether guests exhibit symptoms of Covid and retain signs encouraging social distancing. Guests and staff at events must also be kept apart, and staff at least must wear masks.
This decision, if it is to become a trend, can only be described as socially disastrous. There is no reason South Africans should live permanently in fear of Covid, particularly as it becomes endemic. We certainly should not build a whole new government bureaucracy and private-sector cottage industry around it.
We have seen this play out before. World War 1 normalised the creation of an immense passport regime across the world. What was meant to be temporary morphed into something that today we take for granted — that our “foreignness” alone compels us to constantly identify ourselves to strangers. The 9/11 attacks in the US took things even further, turning air travel into a complex, uncomfortable process of checks and inspections. The financial services industry was also changed from being a service to customers to being a cumbersome system of verifications and invasions of privacy.
In short, relatively isolated events such as wars, terrorist attacks and pandemics are turned into permanent monuments that will follow us around in small and large ways forever. This phenomenon replaces the spontaneous order that characterises free human interaction with regimented order, usually overseen by incompetent and uninterested state bureaucrats.
Health and security are obviously important, but related decisions must reside with society, not with politicians and officials. Individual businesses know far better than tourism department officials what the needs of their hospitality enterprises are. If it appears to them to be necessary to implement permanent Covid protocols, they will do so. Guests will then have a choice of providing their custom to businesses that are organised in a way that suits their preferences. Some guests will prefer venues that have strict protocols and others will prefer those that adopt an approach of individual responsibility.
It follows that venues that are dirty or hotbeds of sickness will lose custom and close their doors before long. The common law has developed principles over centuries that require that a property may not seriously threaten the health and safety of others.
We must let go of the ridiculous notion that without busybody politicians constantly holding our hands, society will be helplessly imperilled. Health, safety and security are not disciplines metaphysically reserved for the state. Civil society and the commercial order that develops within it, guided effectively by market forces, is more than qualified to exist without political meddling. A domain of life does not necessarily become the Wild West simply because the state is absent.
While we might not agree with the political response to the Covid pandemic, it is clear that some kind of social response was necessary. Many businesses implemented work-from-home protocols before the lockdown was declared, for example.
However, we must not doom future generations to a constant state of surveillance and monitoring by the state or its proxies by calling that “normal”. It is anything but normal. It is not socially healthy or economically advantageous. The lockdown and all its associated regulations must come to an immediate and unconditional end and, if anything, be replaced by measures taken by an independent and responsible civil and commercial society.
• Van Staden, a legal fellow at Sakeliga, is pursuing a doctorate in law at the University of Pretoria.
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