17 August 2022

What I have to say appeals to all shades of persuasion. The matter I raise requires me to take this unusual step during these unusual times as we enter the 24th day of the nationwide lockdown as government was compelled to put into place drastic measures, short of draconian, to attempt to stop the Coronavirus in its track.

Though it’s almost a month since the lockdown commenced, I do not see the proverbial light at the end of the tunnel. Okay there is a glimmer of light. Covid19 is no random eruption which would taper out in a few months time like the H5N1 or the SARS virus. At the time of writing at least a hundred thousand people fell to the scythe as it’s steeped across the globe with frightening alacrity. In South Africa, the death toll is exponentially on the rise. And it’s not done …not yet!

These are unusual times which call for unusual measures and actions to be put in place. This is not the time to hurl stones but rather to pick up stones from the devastation that Covid19 is causing – use those stones to rebuild. The overall understanding is that if we all co-operate it could “flatten the curve” at the very least.

There have been numerous reports from township residents that allegedly accuse SAPS or SANDF of using excessive force against helpless people. This has the potential of actually eroding the rights and freedoms guaranteed in the Bill of Rights in the Constitution.

We cannot allow any act or conduct that would inexorably lead to a 911 style of erosion of our civil liberties. That is why I support without equivocation, the drastic regulatory framework necessary to allow government to execute its constitutionally mandated duty. At the same time, I must note that whilst these are necessary, the measures that are being executed must have a rational objective.  For this very reason I found it disconcerting that a certain group of Muslims should demand that the President relax regulations that forbid congregational prayers in Mosques so that Muslims could attend mosques and perform their salaah. The government response was a reasoned rejection of that letter. That is a different topic altogether.


I lived through that dreadful era which saw an ANC government under Thabo Mbeki buckle to US pressure and legislate one of the most draconian laws ever passed, namely the Protection of our Democracy against Terrorism and Terrorist Related Act, in 2001. To that end whilst we must obey the laws, hastily put into place in terms of the National Disaster Management Act, unlike the Post 911 era which was contrived, the Covid19 epoch was a random event that went viral.

It is in the enforcement of the regulations, mostly done with due regard to the human rights, that cracks are beginning to appear. There are reports of the SAPS acting in an overbearing manner, for instance in deciding what is referred to as “essential goods”. There are reports of an aalim and a member of a Musjid in Bosmont who was arrested but quickly released after a misunderstanding led to members of the SAPS conducting a raid and affecting an arrest. However, provided that we comply with the regulations and we conduct ourselves within the letter of the law, we can successfully challenge perceived violations. But we have to play the game and comply.

I reiterate that we cannot give the army and SAPS unfettered powers and we must, as civil society reject such authoritarian measures wholly no matter who says that they are necessary. There are structures in place. Be aware of them and act appropriately by responsibly.

It is of utmost importance that emergency measures that we have seen implemented are not at the expense of our fundamental human rights principles and values. Any emergency measures must be limited to what is necessary and strictly proportionate. They must not last indefinitely. Moreover, government must make sure that such measures are subject to regular scrutiny.

We cannot let fear and ignorance become the drivers of dissent and rebellion and that is why there has to be a strong civilian oversight, supported by an impartial and independent judiciary, vigilantly ensuring that government doesn’t exceed its mandated powers. At the same time we must not act as if we have rights that are exclusive and apart from other religions. In these difficult days, that has the capacity to exacerbate tensions.

Saber Ahmed Jazbhay

Lawyer: Constitutional Law, Durban.

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